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2011 DIGILAW 606 (GAU)

Rustamali v. State of Assam

2011-07-21

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 11.12.2009, passed, in Sessions Case No. 193(K)/2007, by the learned Additional Sessions Judge (FTC) No. 2, Kamrup, Guwahati, convicting the accused-appellant under Section 376(2)(f) IPC and sentencing him to suffer rigorous imprisonment for ten years and pay a fine of Rs. 2000/- and, in default of payment of fine, rigorous imprisonment for a further period of two months. 2. The case of the prosecution may, in brief, be described thus: (i) The victim MK, who is aged about 8 years, is a neighbour of the accused-appellant, their houses being situated at a distance of about 100 meters from each other. On 26.11.2003, at about 1.00 P.M., the accused, on the false pretext of giving banana, called MK, the alleged victim girl, to his house and had sexual intercourse with her. She reported the matter to her parents and, then, MA, father of the alleged victim, warned the accused not to indulge in such activities in future, but once again, on 30.08.2004, the accused had indulged in sexual intercourse with MK, whereupon MK's father MA convened a sitting of the elders of his village; but as his co-villagers could do nothing, he filed a First Information Report, on 09.08.2004, with Boko Police Station and a case was accordingly registered under Section 376 IPC against the present accused-appellant. (ii) During the course of investigation, MK was medically examined and, on completion of investigation, charge-sheet was submitted, under Section 376 IPC, against the accused. (iii) At his trial, the accused pleaded not guilty to the charge framed against him under Section 376 IPC. (iv) In support of their case, prosecution examined 8 witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial and the accused having been falsely implicated due to land dispute, which he has with the informant. The defence too adduced evidence by examining two witnesses. (v) Having found the accused-appellant guilty of the offence under Section376(2)(f) IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 3. I have heard Mr. The defence too adduced evidence by examining two witnesses. (v) Having found the accused-appellant guilty of the offence under Section376(2)(f) IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 3. I have heard Mr. K. K. Mahanta, learned Senior Counsel, appearing on behalf of the accused-appellant, and Mrs. A. Begum, learned Additional Public Prosecutor, Assam. 4. While considering the present appeal, it needs to be noted that it has been strenuously argued, on behalf of the accused-appellant, that PW 3, who is alleged to be the victim of rape, did not complain, at any stage, that she had suffered any injury or pain and even the medical evidence on record does not indicate that she (PW 3) had received any injury on her body including her vagina. In such circumstances, according to Mr. Mahanta, the offence of rape cannot be believed to have been committed on a 8 (eight) year old girl, because any sexual intercourse with her would have caused injury to her vaginal area. 5. Controverting the above submissions made on behalf of the accused-appellant, Mrs. A. Begum, learned Additional Public Prosecutor, has submitted that it is not necessary that in every case of sexual intercourse, penetration into vagina would cause injury. 6. Before proceeding further, it needs to be borne in mind that this Court cannot start with the presumption that penetration by a man with a child, whether the child offers or does not offer resistance, would invariably and without option, cause injury on the vaginal area. In fact, the case at hand is one, where the child (PW 3) does not even complain that she had felt pain or cried out. Her evidence, being pivotal in nature around which revolves the entire case of the prosecution, needs to be carefully looked into. 7. The evidence of MK (PW 3) is that about three years ago, while she was playing on the road with other children, namely, Moushumi and Momi, the accused called her to his house, she caught hold of the legs of the bed, which the accused used. The accused lifted her and positioned her on his bed and the accused, then, opened her pant and entered his sexual organ into her vagina. The accused lifted her and positioned her on his bed and the accused, then, opened her pant and entered his sexual organ into her vagina. After two days of the said incident, the accused, again, called her to his house on the pretext of giving chocolate and did the same act, whereupon she reported both the incidents to her parents. Her father lodged a case with the police, police interrogated her and took her to Guwahati for medical examination. 8. In her cross-examination, PW 3 clarified that at the relevant point of time, she was playing with her sister, Mouishumi, and another girl named Momi and at the time of occurrence, she was a student of Class-III. In her cross-examination, she has, however, clarified that she does not remember the date of the second occurrence, but it was the day of Idd and they had invited people on the occasion of Idd. PW 3 has deposed that she does not remember after how many days, police interrogated her. I may pause here to point out that though PW 3 has deposed that the second sexual intercourse, which the accused-appellant had with her, after two days, the fact of the matter remains that the FIR as well as the uncontroverted evidence of MA, father of MK, shows that the date of the Idd was 26.11.2003. According to, however, the evidence of MA, father of MK, and the FIR lodged by him shows that the first occurrence took place on 26.11.2003 before the date of Idd and the second occurrence took place on 30.08.2004. Hence, PW 3 being a child can have possibly failed to correctly recall the dates and it is not something, which would make the Court reject her evidence lock, stock and barrel as unbelievable and unreliable. 9. What is, however, important to note is that PW 3 has deposed that she did not even cry at the time of occurrence, nor she called anyone and that she was not afraid of what the accused had done. She has, however, denied that she has made a false complain to her parents. 10. What becomes clear from the cross-examination of PW 3 is that she did not cry, she did not call anybody and she was not afraid of what the accused had done. This shows that PW 3 was, though a minor, did not offer any resistance. She has, however, denied that she has made a false complain to her parents. 10. What becomes clear from the cross-examination of PW 3 is that she did not cry, she did not call anybody and she was not afraid of what the accused had done. This shows that PW 3 was, though a minor, did not offer any resistance. However, as she was a minor, the accused would still remain guilty of commission of offence of rape if he had sexual intercourse with her inasmuch as Section 375 states that a man is said to commit rape, who has sexual intercourse with a woman, amongst others, with or without her consent, when she is under 16 years of age. The Explanation to Section 375 clearly bring out that penetration is sufficient to constitute a sexual intercourse necessary to constitute the offence of rape. 11. In the case at hand, it is the evidence of P W 3 that the accused positioned her on his bed and put his sexual organ into her vagina, and on the second occasion too, he committed the same act. Is this evidence of PW 3 safe to rely upon? 12. While considering the above aspect of the case, it may be pointed out that, according to Mr. Mahanta, learned Senior counsel, appearing on behalf of the accused-appellant, the evidence of the doctor (PW 7) shows that there was no sign of sexual intercourse on the person of PW 3. 13. It is important to note that the defence declined to cross-examine the doctor (PW 7), who had, admittedly, examined MK (PW 3) on 01.07.2008. His evidence is as under: (i) Evidence of recent sexual intercourse not detected on her person. However, labial separations (genital) suggest attempted sexual intercourse. (ii) Her age is about 8(eight) years and below 10(ten) years. (iii) She was not pregnant at the time of examination. Genital Examination: Genital organs -- Developed. Vulva -- Healthy, slightly separated posteriorly on lithotomic position. Hymen - Intact, Hymeneal orifice admits tip of little finger. Vagina - Healthy. No injury detected. Vaginal smear was taken and examination did not show presence of sperm on microscopic examination. No abnormality detected on her mental condition. Intelligence and memory found average. 14. Genital Examination: Genital organs -- Developed. Vulva -- Healthy, slightly separated posteriorly on lithotomic position. Hymen - Intact, Hymeneal orifice admits tip of little finger. Vagina - Healthy. No injury detected. Vaginal smear was taken and examination did not show presence of sperm on microscopic examination. No abnormality detected on her mental condition. Intelligence and memory found average. 14. In the backdrop of what has been discussed above, when we scrutinize the evidence of doctor (PW 7), it clearly emerges that, according to him, labial separation was suggestive of attempted sexual intercourse. It is no doubt true that, according to PW 7, the alleged victim's vulva was healthy, though slightly separated posteriorly on lithotomic position. The fact remains that in every case of penetration, injury is not necessary, particularly, when a person, who is subjected to sexual intercourse, does not offer any physical resistance. The present one is a case, wherein no resistance was, admittedly, offered by PW 3. 15. While considering the present appeal, what also needs to be noted is that when a woman or a child offers resistance, the chances of injury increases. When, therefore, a woman willingly has sexual intercourse with a man or unwillingly has sexual intercourse with a man, because of the fear, which may have been put to, there may not be injury caused to the vaginal area of her body. This is an aspect, which is extremely important to be borne in mind, in the present case, inasmuch as the child in the present case (i.e., PW 3) gave no indication that she resisted or struggled to free herself. In fact, her description of the occurrence shows that she had no clear idea as to what was being done to her. She has also clarified in her cross-examination that she did not even cry at the time of occurrence or called anyone. What is startling to note is that she was not even afraid of what the accused-appellant was doing. These pieces of evidence, which have been elicited by the defence, go to show the innocence of the child. 16. In the circumstances, as indicated above, if the evidence of the child is believed, the accused-appellant can be safely held to have committed the offence of rape. What is, however, important to note is that, according to the medical evidence on record, labial separation suggests attempted sexual intercourse. 16. In the circumstances, as indicated above, if the evidence of the child is believed, the accused-appellant can be safely held to have committed the offence of rape. What is, however, important to note is that, according to the medical evidence on record, labial separation suggests attempted sexual intercourse. What, now, needs to be borne in mind is that the medical evidence clearly shows labial separation with the hymen intact. 17. It is contended, on behalf of the appellant, by Mr. Mahanta that hymen would have stood torn with the penetration into the vagina of the victim. There can be no doubt that without penetration, there cannot be an offence of rape. The medical evidence shows that there was labial separation, which is indicative of penetration. The penetration need not be full for constituting the offence of rape, the fact that there was no complete penetration is not really material so long as the evidence given by PW 3 and which has remained wholly unshaken in her cross-examination, is that the accused did cause penetration howsoever little it may be in the orifice of the child. 18. I do not find that anything could be specifically brought out from the cross-examination of PW 3 to show that what she had deposed was untrue or false or that she was tutored. It was not even suggested to her (PW 3) or her father that PW 3 had been tutored to give evidence in the manner, which she has done. 19. There is no doubt that while appreciating the evidence of a child witness, the Court has to be careful and ascertain with care and circumspection if she has been tutored. In the present case, nothing surfaces from the evidence on record to show that the child (PW 3) was tutored. Far from this, the evidence given by her father (PW 1) not only corroborated but strengthened her evidence inasmuch as her father's evidence is that on the day of the festival of Idd, i.e. on 26.11.2003, the accused took his daughter (PW 3), aged about 8 (eight) years, to his house and had sexual intercourse with her and while his daughter revealed the incident to him (PW 1), he warned the accused. However, according to the evidence of PW 1, the accused, again, on 30.8.2004, took PW 3 to his house on the pretext of giving chocolate, took her to bed and indulged in sexual intercourse and when he came to know about the said incident from his daughter, he went to the house of the accused and asked him about the incident and though the accused denied the same, he, sometime thereafter, came along with his mother to the house of PW 1, confessed his guilt and asked him (PW 1) not to file any case, but he (PW 1) informed some of the villagers about the incident and when the public asked him to file a case, he filed the case. 20. What is, now, of immense importance to note is that the evidence given by PW 1, that though the accused had, at first, denied the occurrence, he came along with his mother (PW 1) and confessed his guilt and asked PW 1 not to file any case, has not been denied or disputed by the defence in the cross-examination. Thus, the evidence, given by PW 1, to the effect that the accused did confess his guilt and requested PW 1 not to file a case is an admitted fact. 21. Since it is the specific evidence of PW 3 that she reported the incident to her parents, the evidence of PW 1 cannot be regarded as hearsay and this piece of evidence if considered in the light of the fact that the accused had confessed his guilt and asked PW 1 not to file a case, there remains no room for doubt that the accused did have sexual intercourse, though may be partially, with PW 3. It has been submitted, with some justification, by Mr. Mahanta that once the accused had denied, there was no reason for him to feel remorse and confess his guilt. It needs to be noted, in this regard, that according to the evidence of PW 1, that the accused made the confession of his guilt for the purpose of ensuring that no case is filed against him. There is nothing in the evidence on record to show that PW 1 or anyone, on his behalf, had induced the accused to make such a confession. There is nothing in the evidence on record to show that PW 1 or anyone, on his behalf, had induced the accused to make such a confession. The evidence of PW 1, at least, goes to prove that the accused admitted the fact that he did have sexual intercourse with PW 3. Though PW 1 has also been put to cross-examination, nothing was pointed out, on behalf of the appellant, to show that his evidence cannot be believed in, or relied upon. I see, therefore, no reason to discard or reject the evidence of PW 1. 22. Coming to the evidence of PW 2, I notice that, according to his evidence, the accused went to the house of PW 2 and told him that he had committed rape on the daughter of PW 1 and he has, thus, committed a wrong but he urged on PW 2 to request PW 1 not to lodge any case and the matter be solved by way of compromise, whereupon PW 2 called PW 1, but no compromise could be reached. By way of cross-examination of PW 2 also, nothing was brought on record to show that he was not to be believed or could not have been believed. Thus, even the evidence of PW 2 shows that the accused did make extra-judicial confession to PW 2 that he had sexual intercourse with the daughter of PW 1. To this extent, the evidence of PW 2 has remained unshaken. In fact, he has been left out without being effectively cross-examined. The evidence, thus, of PW 2 cannot be ignored and even his evidence is sufficient to conclude that the accused himself confessed to have had sexual intercourse with his daughter. 23. In tune with the evidence of PW 2, PW 4 has also deposed that the accused met him with a request to talk to PW 1 not to lodge any case, but he (PW 4) did not talk to PW 1. From the evidence of PW 4, what, at least, clearly comes out is that the accused did go to PW 4 too with the request that PW 1 be requested not to lodge any case. This is, thus, a circumstance, which goes against the accused. 24. From the evidence of PW 4, what, at least, clearly comes out is that the accused did go to PW 4 too with the request that PW 1 be requested not to lodge any case. This is, thus, a circumstance, which goes against the accused. 24. As far as PW 5 is concerned, his evidence is that on hearing the occurrence of commission of rape on PW 1's daughter by the accused-appellant, he went to the house of PW 1 to discuss the matter with him and asked him to leave the matter and not to lodge a case, but PW 1 did not listen to him. From the evidence of PW 2, PW 4 and PW 5, what becomes clear is that though the FIR was lodged, in the present case, on 09.08.2004, the fact of the matter remains that the claim of PW 1 that his daughter had been subjected to rape by the accused-appellant was known to his villagers and it is not a case, wherein a belated FIR, without any factual disclosure, has been made. 25. As far as PW 6 is concerned, his evidence is that on the day of the occurrence, he was present at his house and at that time, he saw the accused begging apology by falling at the feet of PW 1 and that the complaint raised against the accused was that he had committed rape on PW 1's daughter. In his cross-examination, PW 6 has clarified that except noticing the incident of seeking apology by touching the feet of PW 1 by the accused, he had not seen anything else. This piece of evidence, which has remained unshaken, gives credence to the evidence of PW 1 that the accused did come to him, confessed his guilt and requested him not to lodge the case. 26. Though the defence has also adduced evidence by examining two witnesses, what needs to be noted is that, according to DW 1, he knows both, the accused and also PW 1, and he is a relative of both of them. DW 1 clearly stated that he does not know anything about the incident, but he admits that PW 1 had called a village mel (i.e., sitting of the villagers) accusing Rustom (i.e. the accused-appellant) of commission of rape on his (PW 1 s) daughter. DW 1 clearly stated that he does not know anything about the incident, but he admits that PW 1 had called a village mel (i.e., sitting of the villagers) accusing Rustom (i.e. the accused-appellant) of commission of rape on his (PW 1 s) daughter. DW 1 has, however, claimed that PW 1 could not give any evidence before the public that his daughter has been subjected to rape. What is, however, important to note is that DW 1 is not a co-villager of the accused-appellant and/or PW 1. He, therefore, claims to have gone to the house of PW 1 oh the day of the occurrence to buy cow and had stayed at the house of the accused-appellant This shows the close relation, which DW 1 enjoyed with the accused-appellant. When asked in the cross-examination as to how he happened to meet the accused, at the house of the accused, on 30.8.2004, when it was a day of Idd, DW1 replied by saying that he went to his father-in-law's house to celebrate Idd and, then, went to buy a cow at Batipara. It is very unlikely that on the day of Idd, DW 1, instead of celebrating Idd, at his house, would come to his father-in-law's house and even if one believes that he went to his father-in-law's house to celebrate Idd. it is, again, difficult to believe that on the same day, he went to buy a cow. This apart, according to DW 1, he had stayed in the house of the accused on the night of 30.8.2004, whereas the clear evidence of PW 1, which has not been disputed by the defence, is that the occurrence had taken place on 30.8.2004, which was the day of Idd. 27. Coming to the evidence of DW 2, it needs to be noted that, according to this witness, there is a land dispute between the appellant and PW 1 regarding boundary of the land and that PW 1 used to cut the southern side of the land of the appellant and there used to be quarrel every year between them. No such evidence has come from other witnesses. It has. therefore, come, for the first time, from the evidence of DW 2 that there used to be quarrel twice a year between the appellant and PW 1. No such evidence has come from other witnesses. It has. therefore, come, for the first time, from the evidence of DW 2 that there used to be quarrel twice a year between the appellant and PW 1. DW 2 also agrees that he heard about the incident on the day of Idd that there was a mel (i.e. a meeting of the village people), there was no foundation laid for the evidence given by DW 2 that he used to quarrel twice a year with regard to the boundary of the land. 28. Reverting back to Mr. Mahanta's contention that penetration, it may be noted, is sine qua non for the offence of rape. There must be convincing evidence on record that some part of the virile member of the accused was within the labia of the pudendum of the female person, no matter how little such part was within the labia of the pudendum. What is. however, of utmost importance to note is that rupture of hymen is not at all necessary for the purpose of constituting the offence of rape inasmuch as even slightest penetration, in the vulva, is sufficient to constitute the offence of rape. Vulva penetration, with or without violence, is as much rape as vaginal penetration. The statute demands evidence of penetration howsoever little it may be and this may occur even with the hymen remaining intact. One may, in this regard, refer to the case of Aman Kumar v. State of Haryana reported in (2004) 4 SCC 379 , wherein the relevant observations appearing read as under: 7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893).....The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section376 IPC. (Emphasis is added) 29. In the present case, since there has been no struggle and resistance from the end of the child (PW 3), it is sufficient to constitute the offence if the Court believes that some part of the virile member of the accused-appellant was within the labia of the pudendum of the woman. (Emphasis is added) 29. In the present case, since there has been no struggle and resistance from the end of the child (PW 3), it is sufficient to constitute the offence if the Court believes that some part of the virile member of the accused-appellant was within the labia of the pudendum of the woman. Apart from the fact that the evidence of PW 3 has remained unshaken, even the medical evidence on record supports the evidence of P W3 inasmuch as the doctor's clear and unchallenged finding is that there was labial separation of the genital suggesting attempted sexual intercourse. The word, 'attempt', which the doctor has used, is the impression drawn by the doctor, the fact of the matter, however, remains that there could not be labial separation without penetration and penetration, howsoever little, constitute the offence of rape. 30. I may also point out that Mr. Mahanta has referred to the case of Yerumalla Latchaiah v. State of A.P. reported in (2006) 9 SCC 713 . 31. While considering the case of Yerumalla Latchaiah (supra), it needs to be noted that though the victim was eight years old, her evidence has not been discussed, but the Supreme Court has observed that her evidence was belied by the medical evidence meaning thereby that the victim must have offered resistance causing of injury on her person. As the facts are not clearly stated in the decision, in Yerumalla Latchaiah (supra), it is difficult to apply this decision to the present case, without knowing the exact facts, particularly, when the case at hand is one, where there was, even according to the victim's evidence, no resistance from her end and the medical evidence, as indicated above, gives credence to her evidence that some part of the virile member of the accused-appellant did enter into the labia of the pudendum of the victim. 32. What crystallises from the above discussion is that the evidence of the child (P W3) is wholly unshaken and her evidence is substantially supported by the remaining evidence on record. In such circumstances, the finding of guilt, reached by the learned trial Court, that the accused had committed the offence of rape on a child, cannot be found fault with. What crystallises from the above discussion is that the evidence of the child (P W3) is wholly unshaken and her evidence is substantially supported by the remaining evidence on record. In such circumstances, the finding of guilt, reached by the learned trial Court, that the accused had committed the offence of rape on a child, cannot be found fault with. 1, therefore, see no reason to interfere with the finding of guilt reached against the accused-appellant or the sentence passed against him, which is, in the facts and attending circumstances of the present case, reasonable and within the ambit of law. 33. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 34. Send back the LCR. Appeal dismissed