Judgment 1. Subhash son of Bindeshwari resident of village Begusarai (Bihar), was convicted and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 5,000.00 and in default thereof to undergo further R.I. for 21/2 years in case FIR No. 356 dated 29-6-1997 of Police Station, Civil Lines, Rohtak (Sessions case No. 8 of 1997) by the Additional Sessions Judge, Rohtak vide order dated 16/20-7-1999. Through this appeal, he has challenged his conviction and sentence and has prayed for acquittal. 2. The prosecution case, in brief, is that Sohan Singh was residing along with his wife and two daughters in new 12-J, PGIMS, Rohtak. It was under construction. Of the daughters, Chiku was elder aged about 3 years. During day time, he and his wife Madina had to be in Ward No. 14 (old) which was being repaired. They used to take both their daughters with them. Children used to play nearby while they were at work in the repair of ward No. 14 (old). On 29-6-1997, he, his wife Madina and other labourers were working in ward No. 14, PGIMS, Rohtak. Among them, there were 4 masons working. Subhash was one of them working there. At about 9 a.m. Chiku and her younger sister were playing in the adjoining room with other small children. Subhash mason told Sohan singh to prepare concrete mixture and he was just coming after urinating. After a little while, he heard the cries of a child emanating from the latrine/bath room side. Sohan Singh and Shanker Beldar ran in the direction from which cries of the child were emanating and when they reached near the condemned latrine/bath room, they saw Subhash accused coming running out of that latrine/toilet closing the zip of his pants. They tried to apprehend him and raised alarm "catch hold of him". On hearing the alarm, his wife Madina, Ram Phal Chowkidar and other labourers came running to the spot. Subhash, however, succeeded in escaping. Chiku was weeping. Her vagina was bleeding and there were stains of blood on her pyjami and frock suggesting that Subhash has raped Chiku. Sohan Singh accompanied by his daughter Chiku reached Police Post PGIMS, Rohtak. He made statement Ex. PT before ASI Nathu Ram, on the basis of which, case FIR No. 356 was registered at Police Station Civil Lines, Rohtak on 29-6-1997. Chiku was medically examined by Dr. Sohan Singh accompanied by his daughter Chiku reached Police Post PGIMS, Rohtak. He made statement Ex. PT before ASI Nathu Ram, on the basis of which, case FIR No. 356 was registered at Police Station Civil Lines, Rohtak on 29-6-1997. Chiku was medically examined by Dr. Anil Raheja, who was posted as Medical Officer in PGIMS, Rohtak on 29-6-1997. There was no external evidence of injury but alleged history of rape at 9 a.m. was given to him. For local examination, he referred Chiku to Gynaecologist after admitting her in Ward No. 2. He took into possession the frock and pyjami, which Chiku was wearing at that time. He put his signatures on frock Ex. P-5 and pyjami Ex. P-6. He put that frock and pyjami into a sealed packet. He handed over that sealed packet to the police. Dr. Nita Seth, Senior Resident Gynae Department, Ward No. 2, PGIMS, Rohtak performed local examination of Chiku. There was no external evidence of injury over the thigh, perineum and parianal area. The labia majora was normal, but there was presence of small laceration over left labia minora of 4 x 11/2 mm in size. Labia minora was slightly congested. She took swabs of the secretion over the hymen and vagina. There was no evidence of the presence of blood stains on her frock and pyjami. There was no evidence of external injury and redness around the parianal area. She gave the swab and the envelop to casualty Medical Officer Dr. Raheja on 29-6-1997. The police moved an application Ex. PL before Dr. Nita Seth for her opinion on 26-7-1997 on Chiku. Dr. Nita Seth gave her opinion. According to Dr. Nita Seth, possibility of rape on Chiku could not be ruled out. Dr. P.D. Garg, Medical Officer, examined Subhash on 30-6-1997 and found that there was nothing to suggest that he was unable to perform intercourse. There was laceration at the frenulum of penis. Crematrix reflect was present. He took into possession pant Ex. P-4 and handed over the same to the police. 3. After investigation, accused was challaned. Case was committed to the Court of Session by the Chief Judicial Magistrate, Rohtak vide order dated 11-8-1997. 4. Accused was charged for an offence punishable under S. 376, IPC. He pleaded not guilty to the charge and claimed trial. P-4 and handed over the same to the police. 3. After investigation, accused was challaned. Case was committed to the Court of Session by the Chief Judicial Magistrate, Rohtak vide order dated 11-8-1997. 4. Accused was charged for an offence punishable under S. 376, IPC. He pleaded not guilty to the charge and claimed trial. At the conclusion of the trial, he was convicted and sentenced as indicated above by learned Additional Sessions Judge, Rohtak. 5. I have heard the learned counsel for the appellant, learned Assistant Advocate General for the State of Haryana and have gone through the record. 6. It was submitted by the learned counsel for the appellant that there is no evidence about the commission of rape upon Chiku daughter of Sohan Singh by the accused, as neither Chiku appeared at the trial nor her father Sohan Singh appeared at the trial. If Chiku had been produced, she would have narrated the entire sequence of events. If Sohan Singh had been produced, he would have also stated about what accused had done to his daughter. It was submitted that Chiku and her father were material witnesses at the trial. Non-examination of the material witnesses at the trial would make the prosecution case infirm. It was submitted that Chiku would have given first hand version and her father too would have given first hand version. Their non-production would leave the prosecution case in a state of obscurity. 7. In this case, non-examination of Chiku and her father Sohan Singh would not have any effect at all on the prosecution case as Shankar PW-12 and Ram Phal PW-13 have given a vivid account of the entire sequence of events. Shankar has stated that 10-11 months back, he was working as beldar of P.W. D. (BandR) at Ward No. 14, PGIMS Rohtak. Work of plaster of walls was going on. He was on duty from 8 a.m. to 5 p.m. After him, there was the duty of Ram Phal beldar. There were 8 labourers and 4 masons. One of the masons was Subhash accused. Among labourers, there were Sohan Singh, his wife Madina and a number of other labourers. Children of Sohan Singh, who were two in number, were also present at the site. One daughter was aged about 3/31/2 years and the other one was younger to her. There were 8 labourers and 4 masons. One of the masons was Subhash accused. Among labourers, there were Sohan Singh, his wife Madina and a number of other labourers. Children of Sohan Singh, who were two in number, were also present at the site. One daughter was aged about 3/31/2 years and the other one was younger to her. At around 9 a.m. Sohan Singh and Madina were preparing concrete mixture. Subhash mason said that he was going for urinating. He further stated that he was present there and was supervising the work. After about 5 minutes, they heard the cries of a child. He and Sohan Singh went to the place from where cries were emanting outside but adjacent to the building, where work was going on, there was a toilet. Cries were emanating from the toilet. He and Sohan Singh ran towards toilet and they saw that Subhash mason was coming out of the toilet and was closing the zip of his pants. They tried to catch him but he succeeded in escaping. Ram Pahl and Madina also came there in the meanwhile. They went into the toilet and found that Sohan Singhs daughter was lying unconscious and her clothes were stained with blood. Pyjami of the child was torn from underneath. He along with Ram Phal, Sohan singh and Madina brought the child to the police post. He further stated that Subhash accused had raped the daughter of Sohan Singh. 8. Ram Phal PW-13 stated that he was on Chowkidar duty. About 11 months ago, on 92 bedded building at PGIMS, Rohtak, work of repair was going on. He was on duty from 5 OClock in the evening upto 8 a.m. in the morning. Shankar was on duty from 8 a.m. to 5 p.m. About 15-20 labourers were working. There two masons were working, one of them was Subhash. There were other masons also, but some had not reached. At about 9 a.m., Shankar heard the cries of a child. He as well as all of them went towards the place from where cries were being heard. Girl was in the gallery outside the main toilet, but inside the main gate of the toilet. They saw Subhash accused coming out of the toilet closing the zip of his pants. He and Shankar chased the accused and caught him. He as well as all of them went towards the place from where cries were being heard. Girl was in the gallery outside the main toilet, but inside the main gate of the toilet. They saw Subhash accused coming out of the toilet closing the zip of his pants. He and Shankar chased the accused and caught him. Sohan singh and Madina, parents of the child had also reached the spot hearing her cries. Girl was picked up by Madina. She was bleeding from her vagina and her clothes were stained with blood. She showed to them that the child had been raped by the accused. They brought Madina, child and her father to the police post. 9. Shankar PW-12 and Ram Phal PW-13 have given an ocular account. If Sohan Singh, Madina and Chiku had been produced, they would also have given the same ocular account. Their production would have meant mere addition to the number of eye-witnesses. In assessing the worth of evidence and evaluating it, we have to go not by the number of witnesses to the same fact, but we have to look to the quality of their testimony. Shankar PW. 12 and Ram Phal PW. 13 are locals. They do not have any animus against Subhash, who is from Bihar. They do not have any soft corner for Sohan Singh, Madina and Chiku, who are also from Bihar. Sohan Singh and Subhash had come to this part of the country to eke out a living, though they are from Bihar. They were served, but they did not come present, as they were reported to have gone to Gujarat for eking out their living. They are migrant labourers. No inference can be drawn against the prosecution, if they did not appear before the Court. Their non-appearance before the Court will have no effect on the prosecution case. 10. It was submitted by the learned counsel for the appellant that it cannot be made out from the statement of PW. 12 Shanker and Ram Phal PW. 13 that they saw the child being ravished by the accused. It is true that from their statements, it cannot be deduced that they saw the child being ravished by the accused. 10. It was submitted by the learned counsel for the appellant that it cannot be made out from the statement of PW. 12 Shanker and Ram Phal PW. 13 that they saw the child being ravished by the accused. It is true that from their statements, it cannot be deduced that they saw the child being ravished by the accused. It is also equally true that the inference that the child was ravished by the accused can well be raised from the state in which the accused was and in which the child was when the accused was seen coming out of the toilet and closing the zip of his pants. As regards the state in which the child was found after she was ravished, the statement of Dr. Nita Seth, PW-8 and Dr. Anil Raheja PW. 7 are tell tale. Similarly, as regards the state in which the accused was found after the act of ravishing the child, the statement of PW-1 Dr. P.D. Garg, Medical Officer, PGIMS, Rohtak is tell tale. On the medical examination of the accused, Dr. P.D. Garg, Medical Officer, PGIMS, Rohtak found that there was nothing to suggest that he was not capable of performing sexual intercourse. Laceration was present at the frenulun of penis. Crematrix reflex was present. His shirt, pant, underwear were found stained with a few medium and small blood stains and blood was detected in blood sample by Assistant Director, Biology, Forensic Science Laboratory (H), Madhuban, Karnal. Dr. Garg had taken these clothes from the accused which he was wearing at the time of his examination. As regards the girl (child), Dr. Nita Seth found labia majora normal, but there was presence of small laceration over left labia minora of 4 x 11/2 mm in size. She found that both labia minora were slightly congested. She took swab of the secretion over the hymen and vagina. She did not find any evidence of the presence of blood or fluid of secretion or hair over the thigh or perineum. Assistant Director (Biology), Forensic Science Laboratory (H), Madhuban, Karnal found that frock was stained with a few large and small blood stains, pyjami was stained with numerous small blood stains. Blood was detected on swab of her secretion over the hymen and vagina. 11. Assistant Director (Biology), Forensic Science Laboratory (H), Madhuban, Karnal found that frock was stained with a few large and small blood stains, pyjami was stained with numerous small blood stains. Blood was detected on swab of her secretion over the hymen and vagina. 11. It is well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons conviction, if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence, the whole endeavour and effort of the Court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his, guilt, he is entitled to the benefit of doubt. This rule of criminal jurisprudence was enunciated by the Hon ble Supreme Court in Kanhal Mishra alias Kanhaiya Misar V/s. State of Bihar, AIR 2001 SC 1113 , where the Hon ble Supreme Court referred to M.G. Agarwal V/s. State of Maharashtra, AIR 1963 SC 200 Ronny alias Ronald James Alwaris V/s. State of Maharashtra (1998) 3 SCC 625 and Joseph son of Kooveli Poulo V/s. State of Kerala (2000) 5 SCC 197 . 12. While keeping in mind the aforesaid position of law, we have to see whether the evidence adduced in the case unerringly points to the guilt of the accused. 13. It was submitted by the learned counsel for the appellant that no semen was detected on the frock and pyjami of the child and no semen was detected on the swab. It was further submitted that no semen was detected on the shirt, pant, underwear of the accused. Suffice it to say the accused may not have ejaculated and he may not have been able to effect penetration into the vagina to a certain distance. If penis had not come into contact with the vagina, there would have been no laceration on the frenulun of penis. Suffice it to say the accused may not have ejaculated and he may not have been able to effect penetration into the vagina to a certain distance. If penis had not come into contact with the vagina, there would have been no laceration on the frenulun of penis. Similarly, there would have been no laceration over left labia minora. 14. Rape is act of savagery on the part of the doer of the act. It demonstrates how savage and brutal he is that he has no regard for the chastity of a woman whom her chastity is so precious that she will not surrender it at any cost. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of helpless female. The Courts should deal with such cases with utmost sensitivity. These are the observations of the Hon ble Supreme Court in State of Punjab V/s. Gurmit Singh, 1996 (1) Rec Cri R 533 . 15. In this case, therefore, the accused deserves no sympathy of the Court. He was required to be dealt with sternly and this is what the learned Additional Sessions Judge has done. He is a savage and a brute. He allowed his animal instinct to sway the decency of behaviour towards a child of 3/4 years of a fellow worker, working with him in the repair of 1992 Bedded building in PGIMS, Rohtak. 16. For the reasons given above, this appeal fails and is dismissed.