S. N. TRIPATHI, J. ( 1 ) ACCUSED Shamsher alias Tappi has been convicted on a charge u/s 376 I. P. C. and sentenced to undergo 4 years R. I. vide judgment and order dated 28-6-1994 passed by IVth Addl. Sessions Judge, Agra. ( 2 ) THE prosecution case started on the basis of FIR dated 16-2-1989 registered at 12. 05 PM after covering a distance of 9 Kms. The incident is said to have taken place on 14-2-1989 at 12 noon. The complainant Id Mohd. P. W. 1 has alleged in the report dated 16-2-1989 that about 5-6 days earlier, he had gone to Sahadra (Agra) fair. On 15-2-1989 his wife Smt. Vakila, P. W. 2 met him in the fair and told him that 14-2-1989 his daughter Km. Sukhi was raped by accused Shamsher alias Tappi at about 12 noon. She raised an alarm, hearing which, smt. Vakila and one Smt. Mamoonan, wife of Siddiq went towards the place. But the accused escaped. ( 3 ) ON the basis of this report, a case was registered at the police station. The blood stained smeared under wear of the girl was taken in possession by the police in police station (Ex. Ka 2 ). ( 4 ) THE girl was referred for medical examination The lady Doctor gave the following report :- gen. Exam.- Of average built. Breasts under developed. No mark of injury on any part of body. Teeth-6 plus 6 wt. 26 Kg. 7 plus 7 height - 130. 5 cm. Mentally deficient. Vaginal Exam. No mark of injury pubic hairs absent, vulva not developed. Vagina admits 1 finger. Hymen torn at 7. 0 clock position. Margins are inflammed. No bleeding I/v present. Vaginal Secretions present. Vaginal smear taken and sent for cytological Exam. Adv. 1) X-ray writs and elbow jt. for age determination. (2) Cytological Exam of vaginal smear. The X-ray report is Ex-Ka 8 along with the supplementary report. Which is as under - cytology - No spermatozoa seen in sent smear. X-Ray - Writs-epiphyses of radius and ulna lowers ends are separate. Elbow.- epiphysis of medial and lat. epicondyle of humerus separate. The epiphysis of radius and ulna upper ends are separate. conclusion - According to X-ray report age is below 14 years. Pt. has been subjected to sexual penetration by some blunt and hard object. Period 48 hrs. or more. X-Ray - Writs-epiphyses of radius and ulna lowers ends are separate. Elbow.- epiphysis of medial and lat. epicondyle of humerus separate. The epiphysis of radius and ulna upper ends are separate. conclusion - According to X-ray report age is below 14 years. Pt. has been subjected to sexual penetration by some blunt and hard object. Period 48 hrs. or more. No definite opinion can be given about rape as no spermatozoa found. ( 5 ) AFTER usual investigation, a charge sheet was laid. ( 6 ) THE prosecution has examined P. W. 1 Edu. the complainant. He has narrated the story as contained in the FIR. Additionally he has said that his daughter Km. Sukhi is deaf and dumb. ( 7 ) P. W. 2 Smt. Vakila has stated that on the date of occurrence, her deaf and dumb daughter Km. Sukhi aged about 11 years had gone to ease out towards the ghur. Whereas, she herself was sitting at her door. She heard an alarm raised by Km. Sukhi and rushed towards the place of occurrence, where she saw the accused Shamsher raping her daughter. He had inserted his penis in her vagina causing internal injuries to her. Seeing the witness, he escaped. ( 8 ) P. W. 3 Sri Babu Ram Yadav is the I. O. in this case. He has also proved the writings of the constable clerk at the police station. ( 9 ) P. W. 4 lady Doctor A. K. Gupta has proved her medical reports, Ex. ka 7 and ka 8 and has additionally stated that this girl was mentally deficient. She was below 14 years. A male organ might have been inserted inside her vagina. ( 10 ) P. W. 5 Constable Ram Singh has proved entries in the chik and G. D. ( 11 ) THE accused in his statement u/s 313 Cr. PC has denied the allegations against him and has additionally stated that on account of enmity, he has been falsely implicated. The accused has examined Ram Bharosey Lal Vice-Principal of Intermediate College, Berhan, to prove his obsence on the date of occurrence. ( 12 ) THE learned lower Court after examining the entire facts and circumstances on the record concluded that the charge against the accused had been proved. He convicted and sentenced him as noted above. ( 13 ) FEELING aggrieved, the accused has approached this Court. ( 12 ) THE learned lower Court after examining the entire facts and circumstances on the record concluded that the charge against the accused had been proved. He convicted and sentenced him as noted above. ( 13 ) FEELING aggrieved, the accused has approached this Court. ( 14 ) I have heard learned counsel for the parties at stretch and gone through the record and I find that there is no force in this appeal and it deserves to be dismissed. ( 15 ) THE main thrust of the learned counsel for the appellant Sri Tej Pal, who argued the case with his usual thoroughness was that Km. Sukhi has not been examined in the Court and she was the best witness and has been withheld without any just cause. Therefore, the prosecution must suffer and the Court must draw an adverse inference against it. But I find that there is no force in this argument. ( 16 ) THE lady Doctor A. K. Gupta, P. W. 4 has written the earliest report that the girl was mentally deficient. She was cross-examined on this point. The girl was present on the date of examination in Court. In reply to a question whether she was capable of speaking, the witness said that she was mentally deficient. As that point was raised in this Court also, therefore, the Court had ordered her medical examination by C. M. O. , Agra in order to ascertain the actual mental condition of the girl. In the report dated 20-12-1994 sent by C. M. O. , Agra, it has been mentioned that she did not suffer from any mental disease. But her I. Q. was less than 20% and she should be placed in the category of profound mental retardation. The lady Doctor Gupta has also mentioned in her cross-examination that she had mentioned after examining the girl and also talking to her that she was mentally deficient. ( 17 ) MY attention has been invited to the following observations made by Dr. Modi in his Medical Jurisprudence, 1988 Edition at page 454 :-"idiocy-IDIOTS represent the lowest grade of Mental Deficiency, and there is no clear dividing line between them and severe cases of imbecility. Their I. Q. is estimated to be below 20 but in these persons usual tests of intelligence are not applicable. Modi in his Medical Jurisprudence, 1988 Edition at page 454 :-"idiocy-IDIOTS represent the lowest grade of Mental Deficiency, and there is no clear dividing line between them and severe cases of imbecility. Their I. Q. is estimated to be below 20 but in these persons usual tests of intelligence are not applicable. In Idiocy, they lead life of mere vegetative organism which can be compared with the life of young children, as far as mental development is concerned. An idiot is wanting in memory and will-power is devoid of emotions, has no initiative of any kind, is unable to fix attention on any subject and "is unable to guard himself against common physical dangers. " He is usually quiet, entel and timid, though he can be easily irritated. He cannot express himself in articulate language, but he may be able to made himself understood by certain signs i. e. cries of sounds. In some cases he is able to recognise his relatives, and learn with great difficulty. He is usually filthy in his habit and has no concern as to what he eats or drinks. He is very often depraved in morals, and is sometimes cruel to weaker children as well as animals. " ( 18 ) THUS even if this girl were examined in the Court, no material benefit could have accrued to the parties. As the general feature was that she was be having like a deaf and dumb person. So she could not respond to the queries. The order sheet of the Sessions Court shows that the prosecution examined on that date Smt. Vakila, P. W. 2 On that very date, D. G. C. Criminal moved an application paper No. 11 ka, in the Court that Km. Sukhi was present. She was deaf and dumb and unable to give evidence in the dock. She is a disabled girl. It is prayed that the Court be pleased to note her attendance and question her on the spot, if desired. The learned counsel for the accused endorsed on this application that he did not require her for cross-examination. Thereupon, the learned Court made a note of this endorsement in the order sheet in these words :-"the prosecution applies for discharging the witness Sukhi who is stated to be deaf and dumb. Learned counsel for the defence has no objection to it. Thereupon, the learned Court made a note of this endorsement in the order sheet in these words :-"the prosecution applies for discharging the witness Sukhi who is stated to be deaf and dumb. Learned counsel for the defence has no objection to it. It was pointed out before me that the witness is not required for cross-examination. The witness. Sukhi is hereby discharged. " ( 19 ) IT was in this context that Sukhi could not be produced before the Court. But it is clear that the prosecution has not been unfair to the accused. It put its card before the Court as well as the learned defence counsel. The girl was produced even on the date when the lady Doctor was examined. At no stage of trial, it was pressed by this accused that the girl should be examined by the prosecution. Therefore, it cannot be urged before this Court that the accused has suffered on account of non-production of Km. Sukhi. Such person are mentally deficient and they are to be treated as vegetative animals or like children below 5, who cannot give deciphered statements. Under the circumstances even if she could have been examined after following the formalities of Sections 118 and 119, Evidence Act, her statement could not have been of any help to the parties. Of course, even in such a case the trial Courts are expected to examine the witness and record in the proceedings the observations made by the Court. But in this particular circumstance of the case, even if non-compliance of Sections 118 and 119, Evidence Act has not been made. It does not go to the root of the case. So, I discard this argument fociferously advanced by Sri Tej Pal that the prosecution has failed to produce the valuable evidence and the accused has suffered on that account. ( 20 ) THE result is that we have to ignore this argument of Sri Tej Pal and proceed further if a case of rape has been made out. ( 21 ) ACCORDING to the Lady Doctor, the girl was below 14 years of age. The P. W. 1 and P. W. 2 gave her age as 11 or 12 years. It makes no difference. Mentally she was deficient. Such persons develop the qualities of deaf and dumb persons as per statement of lady Doctor Gupta in the second line of cross-examination. The P. W. 1 and P. W. 2 gave her age as 11 or 12 years. It makes no difference. Mentally she was deficient. Such persons develop the qualities of deaf and dumb persons as per statement of lady Doctor Gupta in the second line of cross-examination. ( 22 ) THE injury report prepared by Dr. Gupta clearly shows that the girls vagina admitted only one figer. The hymen was torn at 7 Oclock position. The margines of the vagina were inflammed. No bleeding was present when she was examined after more than 48 hours by lady Dr. Gupta. In the cross-examination, she has stated that sexual intercourse is caused by penetration of male organ inside the vagina. The hymen can be torn even if hard object other than penis is inserted inside the vagina and then only 7 Oclock position of the tears would be visible. It was not suggested to her that the condition of the vagina, which she found, was not there. An attempt was made to show that any other hard object other than male penis had been inserted inside her private part. But this is nobodys case. Therefore, it is clear that the hymen of the girl had been torn at 7 Oclack position and her margins were inflammed. The lady Doctor has further opined that the girl had been subjected to successful penetration by some blunt and hard object, at a period 48 hours or more earlier. As no spermatozoa were found, she could not definitely opine regarding rape as the sperms die at any time before the close of 72 hours. But discharge is not a necessary in gredienting tape. ( 23 ) NOT only this, presence of sperms inside the vagina alone is not required to prove rape. Rape is complete the moment penis enters into the vagina. The penetration is proved in this case as hymen is torn. So the sexual activity is established to constitute the offence of rape. Any other conclusion in the facts and circumstances is impossible to arrive at. ( 24 ) ONCE it is established from objective medical opinion given by Dr. Gupta, P. W. 4 that the girl was subjected to rape on 14-2-1989, we have to see if from other source also this case is made out. Any other conclusion in the facts and circumstances is impossible to arrive at. ( 24 ) ONCE it is established from objective medical opinion given by Dr. Gupta, P. W. 4 that the girl was subjected to rape on 14-2-1989, we have to see if from other source also this case is made out. For that we have the solitary and star witness Smt. Vakila, P. W. 2 She says that on hearing the cries, she rushed towards the place of occurrence, where she saw that the accused had undressed himself and was raping Km. Sukhi by inserting his male organ inside her private part. The girl had received internal injuries. On her underwear, there were blood stains. In the from cross-examination, efforts were made to prove that her opinion regarding the age was not correct. Unfortunately the age given by the lady Doctor in his statement has not been challenged. This witness is an illiterate witness. She says that at the time of her marriage, her husband was about 10 to 15 years senior to her. She Cannot tell the exact years of her marriage. However, she says that she was then 8 years old. Two years after the marriage, the girl was born. It means the girl was born when this lady was about 10 years. It is an absurd statement. The only inference, which can be drawn from this state of affairs is that the lady cannot be pinned down on the point of age mathematically. In the cross-examination at page 2 she says that the girl had received injuries in her private part. She was a little unconscious for some time. She regained consciousness two hours thereafter. No other question regarding the rape was put to her. Not only this, it was not suggested that the part of the girl had not been bleeding on that date and no rape had been committed. Only suggestion of enmity was made that she owned about 400 rupees to the accused and on his demand, a false case has been planned against the accused. It is difficult to believe. Accordingly the suggestion deserves to be rejected. ( 25 ) OTHER points in the cross-examination were brought as to why she did not divulge this factum rape to other persons of the village. It is difficult to believe. Accordingly the suggestion deserves to be rejected. ( 25 ) OTHER points in the cross-examination were brought as to why she did not divulge this factum rape to other persons of the village. It is a matter of common knowledge that rape casts a stigma not only to the victim but also to her family. Therefor, people conceal this fact as far as possible. Moreover, without consulting her husband, she could not take any decision as to what to do. That is why she did not divulge this secret to anybody else and she did not go to any hospital. The first thing she did was that she went to the fair to inform her husband. Therefore, no adverse inference can be drawn against this lady. Such an illiterate person like Smt. Vakila was not in a position to decide as to whether criminal case should be launched against the accused or not. It often happens. Several rape cases go unreported cause of social stigma attached to such incidents. It is so unfortunate that even the victim of rape is looked down upon by the society. That is why many ladies do not report this matter and they suffer the damage done to them mentally as well as physically in solitariness. The victims family members also went to cover up such incidents as far as possible. ( 26 ) SHE went to inform her husband on the following day i. e. 15-2-1989. She says at Page 2 that her husbands brothers son Munira lives separate from her. On that date even he was not present at his house. Therefore he could not be sent to inform Edu. Munira returned on the third day. ( 27 ) IN the F. I. R. , it has been alleged that one lady Smt. Mamoonan, wife of Siddiq, had also gone with Smt. Vakila after hearing the cries of the girl. In his cross-examination. Smt. Vakila denies it and says that she was the first person to reach her daughter alone and saw her daughter lying on the ground. The accused made good his escape. I think this is not a very strange circumstance against the prosecution. It is quite likely that Smt. Mamoonan might nut be prepared to depose for the prosecution as she might have reached later on. The accused made good his escape. I think this is not a very strange circumstance against the prosecution. It is quite likely that Smt. Mamoonan might nut be prepared to depose for the prosecution as she might have reached later on. Witnesses normally avoid appearing in Courts due to village politics. The value the statement of Smt. Vakila is not reduced due to non-production of Smt. Mamoonan. ( 28 ) IT was further alleged that in her statement Smt. Vakila states that she informed her husband about the incident. Her husband Edu says that his wife told him then when Km. Sukhi had gone to ease towards the Ghur, accused Shamsher caught hold of her. The girl cried and Smt. Vakila saw the accused running away. But in the FIR, he has mentioned that his wife informed him that the accused had raped his daughter. This so-called contradiction in the statement of Edu vis-a-vis FIR was not put to Edu and the provisions of Section 145, Evidence Act were not allowed. So no adverse arguments can be entertained on this point that there was a contradiction between the two statements. Not only this, it is difficult to expect from a father to give a pictorial description of rape of his own daughter. In the Court for or a father, it is sufficient to say that an incident like this took place. Hence this argument cannot be entertained. ( 29 ) THIS way, from the statement of Smt. Vakila, P. W. 2 coupled with the statement of Doctor Gupta and the mental condition of Km. Sukhi as well as her age being around 12 years, it is established that rape vas committed by the accused upon Km. Sukhi on 14-2-1989 around 12 noon. ( 30 ) THE FIR in this case was lodged on 16-2-1989. There is good reason to accept the explanation given by Edu. for delay. In-the FIR it has been mentioned that he was away in connection with this work and livelihood in Sahadra,a Agra from about 4 or 5 days earlier. In the Court also, he states that he is an uneducated person. He had gone to Sahadra in connection with his livelihood. There he got an information on 15-2-1989. He started to the village on the same day. But halted at the house of Munshi Khan, Village Etmadpur. It was the cold month of middle February. In the Court also, he states that he is an uneducated person. He had gone to Sahadra in connection with his livelihood. There he got an information on 15-2-1989. He started to the village on the same day. But halted at the house of Munshi Khan, Village Etmadpur. It was the cold month of middle February. Therefore, there was nothing unnatural in this witness halting at the house of Munshi Khan during night. Next day, he went to the police station. He says that he cannot tell as to what time he reached there. But in the G. D. entry his arrival at 12 AM has been mentioned along with Munshi Khan. He says that he had taken his daughter alongwith him. He reached Ferozabad at about 9 or 10 A. M. All these statements have been made by an illiterate person, who has no idea of time. But from the record, it is established that he reached the police station before 12 AM and before the Doctor around 2 PM on 16-2-1989. Constable Shri Ram Rawat had taken the girl and the witnesses to the lady Doctor, as mentioned in the Ex-ka 7. Therefore arithmetical standard of clock precision cannot be expected from this witness or a witness like him. He is a Churihar-Manihar by profession, Whereas the accused is a Faquir by caste. The witness has denied that there was a dispute between Manihars and Faqir of that village and on account of some enmity the accused had been falsely implicated. It is difficult to believe that there was any such enmity between the two communities and if at all, a father will involve his imbecile daughter in such a crime. There are several other good methods of taking revenge. Therefore, I reject this contention. ( 31 ) THERE is no delay in the FIR and there is no flaw in the statement of Edu. and Smt. Vakila so minor aberrations and omissions in their statements do not make any dent in the prosecution case. ( 32 ) THE learned lower Court has rightly appraised the evidence and circumstances on the record. Being a trial Court, he had the opportunity to watch the demeanour of the witnesses a privilege not extended to this Court. and Smt. Vakila so minor aberrations and omissions in their statements do not make any dent in the prosecution case. ( 32 ) THE learned lower Court has rightly appraised the evidence and circumstances on the record. Being a trial Court, he had the opportunity to watch the demeanour of the witnesses a privilege not extended to this Court. Absence of abrasions on the back of the girl do not come in the way of acceptance of the statement of Smt. Vakila on the point that Km. Sukhi had received injuries. Moreover, we do not know the nature of soil on which she had been brought down or the force used in this process. Hence this is not a matter of significance in this case. ( 33 ) THE accused tried to prove his absence from the spot and in that connection, he examined D. W. 1 Sri, Ram Bharosi Lal, the Vice-Principal of Berhan Inter-College, who had brought the attendance register of that date in order to show that from 13-2-1989 to 18-2-1989, the accused was on all along present in the college. He did not prepare the attendance register himself, as he was not the class teacher. In the cross-examination, he had admitted that the attendance register has no paging. It was not regularly maintained. In some places P and in some placed U had been mentioned for presence. There are over-writings in monthly totals, both presence and absence. He did not know who had done these over-writings because these writings were not made by his pen. Perhaps Rajendra Kumar, the class teacher had made them. But he was not examined. In the column of the attendance of accused Shamsher, there were over-writings. This way, this register of attendance produced by this witness has been rightly rejected by the learned lower Court. I am in complete agreement with the conclusions arrived at by the learned lower Court. ( 34 ) THIS way, the appeal has no force. It deserves to be dismissed. ( 35 ) IT was urged by Sri Tej Pal that the sentence should be leniently modified. I do not agree. The accused has committed a very heinous crime in a broad day light upon an imbecile and helpless girl. That shows his depraved attitude. Such criminals are a menace to the society. It deserves to be dismissed. ( 35 ) IT was urged by Sri Tej Pal that the sentence should be leniently modified. I do not agree. The accused has committed a very heinous crime in a broad day light upon an imbecile and helpless girl. That shows his depraved attitude. Such criminals are a menace to the society. In such cases soft sentencing in fact makes a mockery of justice and the society starts looking at the administration of justice with scorn and despite. This contention is rejected. ( 36 ) THE appeal is dismissed. The accused is already in jail. Appeal dismissed .