JAGDISH MAUR Vs. STATE

JUDGEMENT

(1.) This is an appeal by Jagdish Maur, appellant, against his conviction under Section 376 Indian Penal Code and sentence of 12 years' RI and a fine of Rs. 1000.00 thereunder passed by the court of Shri S.M. Aggarwal, Additional Sessions Judge, Delhi, by his impugned judgment and order of sentence, both, dated October 27,1984. The prosecution case stated in brief is that the prosecutrix Kamini alias Kammo aged about 7 years is an inmate of Anath Ashram, Pataudi House, Daryaganj, Delhi. Accused, Jagdish Maur, was working as a Resident Tutor and used to teach boy students of the orphanage. The girl inmates of the orphanage used to live in the Girls' Ward and the boys used to live in a separate ward across the main gate of the Girls' Ward and had a separate entry. On the night between April 8/9, 1982 the appellant took the prosecutrix on the first floor by alluring her that he would give her burfi. The appellant committed rape on Kammo He then brought her back to the ground floor. On the morning of April 9, 1982 Bhagwani, PW5, who was employed as a warden in the orphanage and whose duty was to attend to the girl inmates saw that Kammo was not feeling well. Bhagwani took some girl inmates of the orphanage to the hospital for getting some injections and allowed Kammo to remain in the Ward. On her return from the hospital Bhagwani contacted Kammo. She found that Kammo was bleeding from her private part and her salwar had got blood stains. Bhagwani removed her blood stained salwar and took Kammo to the hospital. Pushpa another employee of the orphanage, also accompanied Bhagwani to the hospital. Karnmo told the lady doctor who attended on her that Jagdish Maur had raped her on the last night after having allured her to give a piece of burfi. Dr. Nutan Gupta on examination found hymen of Kammo torn completely. The salwar of the prosecutrix which was taken into possession by the police was sent to the CFSL have reported that human semen mixed with blood was detected on the salwar. One underwear wars got removed from the person of the appellant. The CFSL on examination of the same also found human semen thereon. Kamnio, prosecutrix, in her statement as Public Witness I narrated the prosecution version. Bhagwani, Public Witness 5, also supported the prosecution version. She stated that the prosecutrix Kammo had told her and the lady doctor in the hospital on the morning of April 9, 1982 that the accused Jagdish had raped on her on the night of April 8, 1982. He had allured her by giving a piece of burfi. The appellant in his statement under Section 313 Criminal Procedure Code . recorded after the conclusion of the prosecution evidence denied the prosecution allegations. He, however, stated that his Kachha was seized but stated that he could not say about its alleged sealing by the police. He further stated that he was innocent. The sons of Bhagwani used to go to the Girls' Ward at odd hours. He used to object to their visits there. Their mother Bhagwani was annoyed with him for that reason and had threatened to harm him whenever any occasion arose. He further stated that on April 8, 1982 he was not in the Arya Orphanage and had gone to his village and returned to the orphanage on April 9, 1982. He also stated that on April 9, 1982 he took one boy inmate by the name of Devi Mittar to Irwin Hospital, as he had received injuries with a glass splinter on his foot. They came back from lrwin Hospital, at about 4.30 p.m. His shirt and pant had blood stains at that time which he got while lifting Devi Mittar in his lap while taking him to the hospital. The appellant examined four witnesses in his defence. The learned trial court found the charge punishable under Section 376 Indian Penal Code as proved beyond a reasonable doubt from the evidence of the prosecution as adduced on the record. The appellant was accordingly convicted and sentenced.

(2.) I have heard Mr. R.P. Kathuria, learned counsel for the appellant, and Mr. R.P. Lao, learned counsel for the State, and was taken through the record of the case. Mr. Kathuria raised a number of points in support of his contention that on the facts and circumstances of the case as brought out on the record the learned trial court was not justified in relying on the statement of Kammo who was a child witness and that of Bhagwani, Public Witness 5. I may say at the very outset that almost all the points as urged by Mr. Kathuria were urged before the learned Additional Sessions and he has dealt with them correctly and the impugned judgment is un-assailabie. Broadly speaking the prosecution had to establish two things to bring guilt home to the appellant, firstly that rape had been committed on Kammo, prosecutrix, and secondly that it was the appellant who committed rape on her. It has come in evidence that Karnmo was just about 7 years of age on the date of the occurrence. Regarding the first point; the statement of Kammo that the appellant took her upstairs on the night between April 8/9, 1982 and committed rape on her there finds full corroboration by the medical evidence consisting of the MLC report of Dr. Nutan Gupta, Ex. Public Witness IO/A, duly proved by Kanwar Singh. Public Witness 10, record clerk of LNJP Hospital. As per this MLC report of Dr. Nutan Gupta she found that the hymen of Kammo was torn completely with post vaginal wall exposed slightly. No tear was seen. She found bleeding from the vagine and thighs stained with blood. She gave the opinion that it was probably a case of rape. The reports of the CFSL. Ex. Public Witness 12/D and that of serologist. Ex. Public Witness 12/E wherein human semen mixed with blood was detected on the salwar of the prosecutrix, fully corroborated the version of the prosecution that Kammo was subjected to sexual intercourse. This fact was not disputed by Mr. Kathuria. We are thus left to see as to whether the conclusion of the learned trial court that the appellant committed rape was or was not justified. Mr. Kathuria, learned counsel for the appellant, first of all submitted that there was a delay in the recording of the FIR Ex. Public Witness 1/A which was recorded at 4.40 P.M. on April 9, 1982 while the occurrence took place on the night between April 8/9, 1982. The prosecutrix Karnmo was a young lass of 7 years of age at the time of the occurrence. According to her statement as Public Witness 1 she was left back in the ward by the appellant after committing rape with her upstairs. A young girl of 7 years would certainly get highly shocked on being ravished by a male and in such a situated the conduct of Kammo in not awakening or talking to any other inmate of the ward at the night or early in the morning about the occurrence till she was attended to by Bhagwani Public Witness is not some thing abnormal. On Bhagwani PW having detected that Kammo was bleeding from her private part she removed her to the hospital where she learnt from Kammo herself that she had been raped. Kammo was medically examined at about 2.00 p.m. A report about Kammo having been brought to the hospital was lodged by the duty constable at the hospital to the local police which was recorded as D.D.No. 13A (copy of which is Ex. Public Witness 13/A) at 2.35 P.M Under the circumstances the delay in the lodging of the FIR could not be considered lo be any circumstance introducing any infirmity in the case of the prosecution and there was no reason to disbelieve the statement of Kammo, prosecutrix, which stood corroborated from the medical evidence as also from the statement of Bhagwani Public Witness . It was next submitted by Mr. Kathuria that from the medical evidence adduced on the record it was clear that no mark of injury was found on the organ of the appellant. It was submitted that had the appellant committed rape on the prosecutrix who was a child of 7 years of age, the appellant would have suffered injury on his male organ. In this connection it is worth-noting that Dr. L.T. Ramani, Public Witness . 6 who examined the appellant medically in his cross-examination stated that it is not necessary that male sex organ of the person should suffer injury during the process of rape even if the female had suffered extensive injuries on her genital. No question was put to this witness in cross-examination if a male committing rape on a child girl of about 7 years must suffer injury on his male sex organ No attempt was also made to confront Dr. Ramani in his above assertion by referring him to the medical jurisprudence on the point. Thus whereas it may be that a male committing rape on a child girl about 7 years of age may often suffer some injury on his male sex organ, that is not absolutely necessary in each case. In the absence of Dr. Ramani having been confronted with his above statement and not being specifically questioned regarding a child submission of Mr. Kathuria. The Supreme Court in Rafiq v. State of Uttar Pradesh. (1980 Cr. L.J. 1344) regarding the need for corroborative evidence to the statement of a prosecutrix being raped and regarding absence of injuries on the person of the aggressor or the victim held as below:

(3.) It was next submitted that the Additional Sessions Judge who recorded the statement of Kammo, prosecutrix, as Public Witness 1 did not incorporate the questions that were put to her to find out if Kammo was able to understand the questions properly and was able to give intelligible answers thereto. It was submitted that reduced the evidentiary value of the statement of Kammo. Some case law was cited in this regard. The Additional Sessions Judge who recorded the statement of Karnmo has given her observations prior to be recording of the statement of Kammo as Public Witness 1. It has been stated therein that the Additional Sessions Judge had talked to Kammo and she understood the sanctity of oath. She was quite intelligent and had answered queries intelligently and that, therefore, she (the Additional Seasions Judge) was of the view that Kammo could answer the questions put to her. The mere fact that the Additional Sessions Judge did not record the questions as put by her to the child witness or the answers of the witness to find out if the child witness was a competent witness did not, in my opinion, render the statement oF Kammo as bad in law, nor reduced its evidentiary value in view of the said certificate of the Additional Sessions Judge. It may be pointed out here that the prosecutrix, Karnmo, was aged about II years at the time of the recording of her statement. This point was duly considered by the learned Additional Sessions Judge and I find myself in agreement with the view taken by him that Karnmo was a competent witness and her statement deserves to be given due weight and consideration. The Bombay High Court in Prabhu and two others v. The State of Maharashtra, ILR (1977) Bombay 1505 observed that in cases when no bath is administered to a child witness his evidence is required to be recorded in the form of questions and answers and that the failure to record evidence in this manner although not fatal is bound to cause some prejudice to the accused. No reference is made to any provision of the Code of Criminal Procedure in the judgment particularly on which the said conclusion was reached by their Lordships of the Bombay High Court. Section 276(2) Criminal Procedure Code . is the relevant provision which provides the mode of taking and recording evidence in enquiries and trials. It states that evidence shall ordinarily he taken down in the form of a narrative, but the Presiding Judge may, in his discretion, take down, or cause to be taken down any part of such evidence in the form of questions and answers. It thus appears to me that whereas in the case of a child witness it may be desirable to record the statement of such a witness in question answer form, the fact that the statement of the child witness is recorded in a narration by the court cannot by itself be taken as causing prejudice to the accused unless it is shown on behalf of the accused cither with reference to the statement of the child witness or by any other facts as brought on the record of the case that the statement of the witness could not be properly recorded in the narrative form. In this regard it is worth-noting that this is not the case of the appellant that any request was made to the court to record the statement of the child witness Kammo in question answer form and that that request was declined by the Additional Sessions Judge and the statement of Karnmo was recorded in a narrative form in disregard of any such request. I thus find myself in agreement with the view taken by the learned Additional Sessions Judge that no prejudice was caused to the appellant by the recording of the statement of the prosecutrix in the narrative form instead of the tame having been recorded in a question answer form.