1. This appeal impugns the judgement and order of conviction passed on 12th day of September, 2022 and 13th day of September, 2022 respectively passed by the Ld. Judge in Special Case No. 16 of 2013 corresponding to Special Trial No. 48 of 2015 under Section 376 (2) (f) of the Indian Penal Code (for short IPC).

2. In view of the guidelines set by the Hon’ble Apex Court Governing this kind of scenarios, we will consciously avoid to divulge into the particulars of the survivor (for short X), witnesses and the Police Station, Hospital, other places including place of occurrence.

3. The appellant has been convicted by the Ld. Judge in connection with Special Case No. 16 of 2013 as under:-

Background:-

4. The facts as reflected in the judgment of the Trial Judge stand as follows:-

One statement of the mother of X was recorded by the duty officer on 23.07.2012 which was treated as complaint and was registered at the concerned Police Station under specific FIR dated 23.07.2012 under Section 376 of the IPC.

5. The mother of X alleged inter alia that she used to reside in a rented house. On that very day i.e. 23.07.2012 she along with her husband went to Hospital for her medical checkup after leaving her six years old daughter at home alone. When she returned at about 1.30 P.M., she noticed that the door of her house was open and upon entering she noticed stains of blood on the floor of her house at different places. She also noticed that her daughter/X was sitting on the bed crying. Thereafter, the defacto complainant/mother of X inquired from her daughter about the blood stains and in reply X told her that the accused (for short A) came to their house when she was all alone and committed rape. As a result of which she suffered severe pain and blood oozed out from her private part. X also added that when she screamed, A left her and wiped blood with a cloth and left their house.

6. On the basis of the said complaint Police took up investigation and upon completion of investigation submitted charge sheet under Section 376 of the IPC against A.

Charges:-

7. Ld. Trial Judge framed charged under Section 376(2) (i) of the IPC read with Section 5 (m) of POCSO Act against A. To which A pleaded not guilty.

Evidence of the Case:-

8. To prove the charge the prosecution side examined as many as fifteen (15) witnesses which stand as follows:-

9. In course of evidence a good number of documents were admitted in evidence which are summarized as below:-

A. Prosecution:-

B. Material Objects:-

Some material objects were collected and admitted into evidence which are marked as Mat Exhibit I-III.

10. After completion of recording of evidence, the accused/appellant was examined under Section 313 of the CrPC wherein he pleaded that he was innocent. But, he did not adduce any evidence in support of his innocence.

11. On the basis of the evidence produced, the trial Court concluded that the guilt of the accused/appellant has been proved beyond reasonable doubt and accordingly convicted the accused /appellant for the offence under Section 376(2) (f) of IPC and awarded rigorous imprisonment for 10 years and also to pay a fine of Rs. 10,000/- in default to suffer further rigorous imprisonment for six (6) months.

Argument advanced:-

12. Ld. Counsel appearing on behalf of the appellant has contended that the Ld. Trial Judge failed to appreciate the fact that the charge under Section 376(2) (i) of the IPC was not framed in accordance with law as the elements of the offence disclosed in the charge are of a totally different point and nature. In addition to that, the Ld. Trial Judge also erred in connection with the supplementary charge sheet pertaining to the CFSL report for forensic examination of wearing apparels and blood stained clothes of X which was never exhibited during entire trial. Then how come the Ld. Judge rely primarily on such findings while giving his judgement. He further added that the deposition of X was based on tutoring of her mother as the whole story is based on false statements given by X and her mother. He further highlighted the fact that the investigation was based on materials manufactured by the investigating agency which could not be cross-examined. Moreso, the doctor who examined X and prepared the proforma no. I could not be cross-examined due to his demise. As a result, no concrete finding/opinion of the medical expert with regard to penetrative sexual assault upon X could be established. He also added that there are material contradictions in the deposition of the witnesses. Thereby, according to Ld. Counsel appearing on behalf of the appellant, prosecution could not prove the charge beyond reasonable doubt.

13. In opposition to that, Ld. Counsel appearing on behalf of the State has relied on the evidence adduced on behalf of the prosecution and submitted that all the witnesses corroborated each other and thereby prosecution was able to prove the charge leveled against the appellant/accused beyond any doubt. She has further submitted that there is no reason to disbelieve the evidence of X who sustained the mental trauma due to an offence alleged in this case.

14. In support of her contention, she relied on a case of State of Chattisgarh Vs. Derha reported in (2004) 9 SCC 699.

15. In order to substantiate her argument Ld. Counsel put emphasis on paragraph no. 6 of the above mentioned case which runs as follows:-

“6. Having heard learned counsel for the parties and perused the records, we are satisfied that the High Court has erred in coming to the conclusion that the accused was not guilty of the offence charged. We first notice from the evidence of PW 3, the doctor that the injuries suffered by PW 2 could not have been self-inflicted. There was blood on her private parts, the hymen was torn and medial side of the labia minora was inflamed. This was even after 4 days of the incident. The doctor in specific terms had stated that the victim is not habituated to sexual intercourse. The mere fact that to a suggestion made in the cross-examination that such injuries could be suffered by the victim by falling on a hard and blunt substance, by itself, in our opinion, would not suffice to reject the evidence of PW 2 who had no enmity whatsoever to implicate the respondent-accused. The suggestion which has come in the form of Section 313 CrPC statement merely says that there was some enmity between the parents of the accused and those of the victim. Neither the nature of enmity nor gravity of the same has been stated, therefore, that explanation would be of no assistance to the accused to establish the fact that he has been falsely implicated. The law is well settled in regard to the evidence of a prosecutrix. It is now well established that if the court is satisfied from the evidence of the victim a conviction can be solely based on such evidence without looking for further corroboration. Same can be done because the prosecutrix is no more treated as an accomplice in the crime. In the instant case the factum of injury suffered by PW 2 and the opinion of the doctor that such injury could have been caused by sexual intercourse and the victim having not been habituated to earlier sexual intercourse itself goes to show that the injury suffered by the victim was one that could have been caused only by an act of rape as alleged by the prosecution. Even in identification of the accused by the victim we have no doubt because he was known to the victim.”

Our view

16. PW5/ mother of X in her examination in chief stated that at the time of the incident she used to reside in the house of A as a tenant. She further stated that on 23.07.2012 she went out and at that time her daughter was staying alone in the house. After returning home, she found blood stain marks on the floor. Upon entering, she noticed that blood was oozing out from the private part of X. On being asked, X told her that A committed rape upon her. Thereafter, X was taken to the hospital and police also came to the Hospital. PW5 identified her signature in the seizure memo which was marked as exhibit 3. The wearing apparels of X was marked as Mat exhibit II and she identified the same before the Court. That apart, PW5 also identified A before the Court. During her cross-examination, PW5 stated that she could not name her neighbours at the tented accommodation. She further added that on the date of incident there was a holiday in the school of her daughter and she did not lock the house from outside but the house was locked from inside. She admitted that at the time of incident there was no enmity or altercation between her and the family of A. She further admitted that there was a common gate in the rented accommodation having one padlock with two keys. PW5 admitted that A and his family members used to keep one key and the other key was with her. As a result, there was no chance of any outsider’s entry inside the rented accommodation.

17. PW6/ X during her examination in chief was 12 years of age and that’s why Ld. Judge inquired about her capacity of giving evidence after putting some questions and ultimately she was held to be a competent witness.

18. During the examination in-chief X stated that on the date of incident she was alone at her home and at that time A came to her room and committed wrongful act upon her. X also stated that as a result of the said act she sustained severe pain in her private part and also started bleeding profusely. PW6 further added that A removed blood from her private part by using her garment and thereafter left the place. Soon after her mother came, she narrated the whole incident to her. Thereafter, X along with her mother went to the Police Station and lodged a complaint. From the P.S. she was taken to the hospital wherein her medical treatment was done. She admitted that A was known to her as he was her private tutor. The signatures of X in the statement recorded under Section 164 of CrPC was marked as exhibit 4 (collectively). X identified A. During her cross-examination, X stated that on the date of incident she returned from school at around 1.00 P.M. She also stated that A used to teach her from 5 to 7 P.M. She admitted that A never misbehaved with her during private tuition. X also admitted that she used to stay alone inside the room by closing the door in absence of her mother and if the door remained closed from inside nobody could open it from outside. She admitted that her mother/ PW5 instructed her how to depose in this case. She stated that on the date of incident her mother told her that she was going to market and she admitted that PW5 returned to the house at around 5.30 p.m. around in the evening on that day. She admitted that the date of incident was a Monday and there was no holiday in her school. She admitted that she had given statement before the Ld. Magistrate and Police as per instruction of her mother.

19. To prove the treatment of X after the incident alleged in this case, the prosecution relied on the medical report.

20. PW14 is the Medical Officer acquainted with the signature of the late doctor who gave his signature in the medical examination report of X. The signature of the late doctor in the proforma no. 1 dated 23.07.2012 was identified by this witness and the same was marked as exhibit P-11/1. During his cross-examination, PW14 stated that he has no knowledge about the present case.

21. PW1/an employee of the Hospital has testified that on 24.07.2012 at about 12.30 p.m.-1 p.m. the police brought A to the hospital for medical examination. Medical Officer attached to Hospital (PW3) examined A and collected his pubic hair and penile swab in separate test tube. Inner wear of A was handed over to the Police. All articles were seized by the Police under a seizure list. He identified A. In cross-examination, he denied the suggestions put to him from the side of the defence regarding seizure of the articles in the Hospital.

22. PW 2 is a private worker who turned hostile. In his crossexaminations all the suggestions advanced by the prosecution were categorically denied by him. The cross-examination of PW1 was accordingly declined by the defence.

23. PW3 who happens to be a doctor, has stated that she conducted Potency Test of A which was marked as exhibit 2 and found him capable of sexual inter course. She prepared injury report of A which is marked as 2/1. She collected pubic hair, penile swab, blood sample and under garment of A. She put her signature on the seizure list. She identified the seized articles produced before the Court. She denied all suggestions put to her during cross-examination.

24. PW4/ Lady Police Constable remained in the Hospital on the alleged date when X was taken to Hospital for medical examination. She further stated that PW5 handed over blood stained wearing apparels. She further stated that A was also taken to that Hospital on the alleged date of incident and she identified A before the Court. In cross-examination, she denied the suggestions.

25. PW7/Home guard has deposed that on that day he accompanied PW13 in connection with investigation of this case. They went to place of occurrence and took photograph of the place and after developing the same he handed over those photographs to the Police. In cross-examination, he stated that he could not say whether those photographs were seized by the I.O. or not. He did not produce the chip of the camera.

26. PW8/Police Constable has stated in his evidence that he visited Hospital and found PW13 to interrogate X and her mother, who handed over wearing apparels of X to the I.O. which were seized by him. In cross-examination, he stated that he did not have any personal knowledge about this case. He denied the suggestion that PW5 did not produce garments in his presence.

27. PW9, Head Constable, stated that he accompanied the other Police personnel to the Hospital on the date of the incident. He further deposed that a blood stained bed sheet and two blood stained sacks were seized from the house of X. A was arrested from the said house after interrogation and was brought to the Hospital for medical examination. He also stated that X identified A in the Hospital. During his crossexamination, PW9 stated that he did not have any personal knowledge about this case.

28. PW10, Inspector of Police, was posted as S.I. of the concerned Police Station on 23.04.2012. On that day he received a call from Hospital that X was admitted into the Hospital and the MLC was done. Upon reaching, PW10 found the parents of X present there. Thereafter, he recorded the statement of PW5 which was marked as exhibit 5. The signature of PW10 in the formal FIR was marked as exhibit 6. During his cross-examination, PW10 admitted that he did not take any endorsement of doctor while recording the statement. That apart, he did not have any personal knowledge about this case.

29. PW11, Police Personnel, who on completion of investigation and on receipt of the CD, filed charge sheet under Section 376 of IPC against A. During his crossexamination nothing significant was revealed.

30. PW12, Head Constable of Police, received Fard Bayan of the complainant and chalked out the FIR of the instant case. Signature of PW12 in the FIR has been marked as exhibit 7. During his cross-examination, PW12 deposed that he has no personal knowledge about this case.

31. PW13, SHO, on the relevant date was posted at the concerned Police Station. On that day he was given a direction to investigate the matter. During investigation he interrogated X at Hospital and seized her wearing apparels. PW13 then went to the place of occurrence and photography of the said place was conducted. On inspection, he found blood stains at different places of that house. The sketch map along with index was prepared by him which was marked as exhibit 9. He arrested A from the spot and thereafter took him to the Hospital where X identified A. He seized certain articles under a seizure memo (exhibit ½). He also collected the copy of the birth certificate (exhibit 10). Thereafter, due to his transfer he handed over the CD to the then SHO. He identified A before the Court. During his cross-examination, PW13 stated that as per statement of PW5 she went to the Hospital along with X and her husband for treatment of X. He also admitted that PW5 stated before him that on the date of the incident PW5 went to the Hospital for her own treatment as at the relevant point of time she was pregnant. That apart, several denials were taken during the cross-examination of PW13.

32. PW15, S.I. of Police, in his examination in chief, stated that he received the CD of this case from the then SHO for further investigation. During investigation, he collected the exhibited box and deposited the same to the Police Station. He also collected the photographs of the P.O. and recorded statements of available witnesses under Section 161 of CrPC. Thereafter, he sent the CD to SHO for filing charge sheet. During his cross-examination, save and except few denials, nothing significant got revealed.

33. This case involves an incident of rape of a child of six years. In such a case, nobody can expect corroboration by any independent witness. In dealing with such type of case the Court should be more sensitized in appreciation of evidence. In terms of heinous nature of such crime that occurs in our society and is often perpetuated by people having close relations. Taking opportunity of the vulnerability of the victim.

34. Ld. Trial Judge particularly relied on the evidence of PW5 & PW6 with the assistance of medical examination report of X and ultimately found the appellant guilty of an offence punishable under Section 376(2) (f) of IPC. X (PW6) only witness to the incident gave her statement before the Court as well as before Ld. Magistrate consistently. In her evidence she narrated how the entire incident occurred at the instance of A, availing the opportunity of the situation when X was in her residence alone. PW5 also corroborated the situation while X was alone in the house and after returning home PW5 noticed blood stains on the floor as well as the bed and found X crying in pain.

35. Further corroborative circumstance is that X was examined by the doctor in the Hospital and a report to that effect was prepared showing that she was subjected to forcible sexual inter course which resulted in her hymen getting torn. PW13, the first I.O of this case, on inspection of the P.O. noticed blood stains at the main door entrance, floor of the bed room and the bed sheet lying on the bed. One sack which was lying on the floor was also found to be stained with blood.

36. From the evidence of PW13 it is revealed that in course of investigation he seized certain articles viz. blood swab taken from the floor in front of main door of rented house of X, one empty sack suspected of blood stain, blood stained bed sheet, etc.

37. From the CFSL report it also appears that those seized articles were sent to examiner for forensic examination. Unfortunately, it is further revealed that neither I.O. nor the Ld. Judge took any effort for admission of the document particularly the expert report received from CFSL as well as the seizure list prepared in respect of blood stained apparels. It is further revealed that I.O. also seized wearing apparels of X under a seizure list (Mat exhibit II). If we take both the seizure list (Mat exhibit II) of the under garment of the X as well as CFSL report in juxtaposition, we can find that the examiner found blood stains in the under garments of the victim. It is needless to mention that latches on the part of the I.O. cannot be the basis of any view in favour of the accused. If the investigating officer did not conduct the investigation properly, that cannot be ground to discredit the testimony of X. In the case at hand, X has fully supported the prosecution she has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the X should not be believed. After thorough cross-examination X has stood by what she has stated fundamental of the allegation supporting the case of the prosecution. We find no reason to doubt the credibility and trustworthiness of X. And to add to that PW5 further strengthened the allegation by saying that after returning home she noticed blood stains on the floor as well as on the bed sheet. She also found her daughter crying and on being asked X narrated the whole incident to her mother (PW5). Again X was immediately taken to Hospital for treatment and the examining doctor prepared a report addressed to medical officer of the Hospital and suggesting an answer ‘yes’ to the question no. 2 of the Proforma no. I i.e. whether she has been subjected to forcible sexual inter course. Doctor further suggested an answer ‘torn’ to the question no. 3 i.e. what was the condition of her hymen.

38. From the course of action enunciated in connection with the present case it is admitted that A had ‘ease of access’ inside the house of X in dual capacities. First, he had landlord-tenant relationship with the family of X and in addition to that he was the private tutor of X and used to teach X regularly at a particular time of the evening in her house which further strengthens the prosecution case against A.

39. Now, coming to the point raised by the Ld. Counsel appearing on behalf of the appellant that the doctor who examined X and prepared Proforma No. I could not be crossexamined due to his demise is actually fatal for the prosecution case. In answer to that, the position of law may, therefore be summarized thus-if the doctor is available for examination in Court, the injury report or the post-mortem report given by him is not substantive evidence and is inadmissible unless he is examined. It can be used for corroboration or refreshing memory or for contradiction of his evidence in Court, but, however, if the doctor is dead or is not available for examination in court under the circumstances mentioned in Section 32, the injury report or the postmortem report is admissible and relevant. What weight it would carry with a Court of fact is altogether a different question. Its probative value would depend on the facts and circumstances of each case. Now coming to the case at hand, the medical report of the doctor has a very high probative value in the factual matrix of this sensitive case under Section 376 (2) (f) of the IPC.

40. Most of the other witnesses examined in this case, are Police Personnel.

41. The Hon’ble Apex Court reiterated in catena of decisions that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. She stands at a higher pedestal than an injured witness.

42. Ld. Counsel appearing on behalf of the appellant has pointed out some contradictions appearing in the evidence of PW5 & PW6 particularly on the issue of the date of incident being a Holiday in the school of X. But, after examining the broader probabilities of the case at hand. We should not get swayed by minor contradictions or insignificant discrepancies in the statement of X and her mother, which are not, in our opinion of a fatal nature throughout and otherwise reliable prosecution case. If the evidence of the X inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. In the case at hand, we may look into evidence of her mother (PW5), which will lend assurance to the testimony of X. After appreciation of the background of entire case we must be alive to our responsibility and be sensitive while dealing with this case involving rape of a minor girl.

43. The Hon’ble Apex Court reiterated that the rape is not mere physical assault, rather it often destroys whole personality of the survivor. The rapist degrades the very soul of the helpless child and, therefore, the testimony of the minor girl must be appreciated in the background of the entire case and in such case, non-examination of other witnesses cannot be a serious infirmity in the prosecution case, particularly when witnesses had not seen the commission of the offence.

44. The fact that during his examination under Section 313 of the CrPC A did not give any plausible explanation as to why the alleged charges were leveled against him further buttressed the prosecution case.

45. Now, coming to the claim of the appellant with regard to the infirmity in relation with the framing of charge against A, we have perused the material on record and admittedly this case neither falls under Section 5(m) of the POCSO Act nor Section 376(2) (i) of the IPC as POCSO Act came into effect after the date of incident and also the Criminal Law (Amendment) Act, 2013 which incorporated the provision of Section 376 (2) (i) came into effect subsequently. But, the Ld. Trial Judge rightly held A accused of an offence under Section 376 (2) (f) of the IPC because the quantum of minimum sentence is absolutely same with that of the Section mentioned in the charge and the Trial Judge on the basis of evidence is absolutely competent to record sentence accordingly. That apart, from the charge framed in this case we can safely say that ingredients for the offence of rape of a minor girl were specifically brought to the notice of the accused.

46. As we find no infirmity in the judgment impugned, we refrain ourselves to interfere with the same.

47. As a sequel, appeal being no. CRA (DB) 3 of 2023 stands dismissed.

48. Let a copy of this judgment along with the Trial Court Record be transmitted back immediately.

49. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.