RAKESH KUMAR Vs. STATE

JUDGEMENT

(1.) The indictment against the appellant is that he ravished a tiny girl aged about four years and six months after confining her in his house No. 24/33, Trilok Puri. The learned Trial Court awarded ten years rigorous imprisonment and a fine in the sum of Rs. 200/- failing which he was ordered to further undergo rigorous imprisonment for one month for the offence under Section 376 IPC, i.e. the minimum sentence prescribed under the law. He was further sentenced to undergo rigorous imprisonment for three months for the offence under Section 342 IPC. Both the sentences were to run concurrently.

(2.) I have heard the counsel for the parties and marshalled the evidence on record. The first submission made by the learned Counsel for the appellant was that the facts mentioned by the prosecutrix, her mother, doctors and report of CFSL do not spell out a case of rape. In this connection, my attention was drawn towards the statement of Dr. Shamli Khundu PW 8, who examined the prosecutrix. On local examination, the doctor found that there was no mark of struggle/injury seen on perineum or lower abdomen. She opined that hymen seemed to be torn but not bleeding, vagina admitted tip of finger but she could not notice any vaginal tears. She explained that since the undergarment of the patient was changed, hence blood could not be detected on her underwear etc. She stated that there was evidence to suggest that the child could have been attempted for sexual assault. She stated that rupture on hymen was not possible by any other injury such as fall or alike because there was no other surrounding injury to suggest such an opinion. She clearly, specifically and unequivocally stated that in the instant case, tear of hymen was caused by sexual assault. The learned Counsel for the appellant opined that in view of these facts, at best it is a case of attempt to rape and not that of rape as such. He has cited an authority reported in Guddu @ Santosh v. State of Madhya Pradesh, 2006 2 Crimes(SC) 209 where the facts were that the accused put off the chaddi of the prosecutrix, pulled down his trousers, sat upon her and when her grandfather appeared the accused took to his heels. Mother of the accused had seen redness in her private part as also blood coming out there from. FIR was lodged on the next date. Doctor found swelling over her private part which had become reddish. Her hymen was found to be intact but it had also become red. The accused was convicted under Section 376/511 IPC.

(3.) The second submission made by learned Counsel for the appellant was that evidence of a child witness must be evaluated carefully as a child witness may be swayed by what others tell him and child is an easy prey to tutoring. Learned Counsel for the appellant relied upon a Supreme Court authority reported in State of UP v. Ashok Dixit and Anr.,2000 DLS 96 SC. In this authority, it was held that wisdom requires that evidence of child must find adequate corroboration before it is relied on. Learned Counsel for the appellant pointed out that a bare look on the testimony of the prosecutrix clearly goes to show that she is not a competent witness. Again, Lal Sahib and Smt. Amrawati who were the material witnesses to tell the truth were given up by the prosecution for the reasons best known to it. He pointed out that as a matter of fact, parents of the prosecutrix wanted to purchase a house owned by the parents of the appellant. Their refusal to do the needful, infuriated the parents of the prosecutrix, which resulted in false involvement of the appellant in this case.