JUDGMENT
N.S. Veerabhadraiah, J.
1. This appeal is by the accused assailing the Judgment of conviction for the offence under Section 376(2)(f) IPC in S.C. No. 47/2000 by the learned Principal Sessions Judge, Belgaum, dated 28-2-2003 sentencing him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 5,000-00, in default to undergo S.I. for a period of 3 months.
2. The brief facts of the case of the prosecution is as under:
The accused Dilawarsab, s/o Alisab was charge-sheeted for the offence under Section 376 I.P.C on the allegation that on 26-9-1999 at about 12.00 noon, committed rape on his cousin sister P.W. 13 in the land of PW 1-Dadesab at Teggihal village. The prosecutrix-P.W. 13 is the daughter of P.W. 1-Dadesab and he is residing in his lands at Teggihal village along with his wife-Bibijan, sons viz., P.W. 3-Husseinsab, Hazarathsab and Moulasab. The brother of P.W.1-Aslisab was also residing nearby with his wife and son-Dilawarsab (accused). On the said date and time, while P.W. 1 was returning towards his hut, saw the accused committing rape on his daughter-PW. 13, aged 10years. He noticed his daughter was struggling at the hands of the accused. When he rushed towards the accused to catch, he ran away with his cloths. Then P.W. 1 -Dadesab took his daughter to his wife and informed about the sexual act committed by the accused. Thereafter, the victim girl was treated by P.W.2-Bibijan by applying turmeric and made her to bath. She also washed the cloths which was stained with the blood. She noticed blood from the private part of the girl and there was swelling. After sometime, P.W. 1 approached his brother Alisab with the villagers viz., P.W. 7-Adiveppagouda and P.W. 15-Tukaram to work out the course of action to be taken. But, the accused’s father Alisab did not say anything. Therefore, P.Ws. 7 and 15 advised P.W. 1 to approach the police for action. Thereafter, P.W. 1 approached P.W. 5-Dalapathi-Pandurang Basanaik Patil. After preparing the complaint by P.W. 5, he proceeded to Saundatti Police Station and filed the complaint as per Ex.Pl. The Sub-Inspector of Police P.W. 17-Nagaraj registered a case in Crime No. 233/ 1999 for the offence under Section 376 I.P.C., prepared the F.I.R. as per Ex. P19 and forwarded to the learned Magistrate along with the report Ex.P20. Thereafter, he sent the victim-PW. 13 to hospital for medical examination with a requisition Ex.P9. The Circle Inspector of Police-P.W. 18-P.R. Hiregoudar took-over the further investigation on 28-9-1999 and verified the investigation. He proceeded to the place of incident at Teggihal Village, secured the photographer-Sanjiv Kumar-C.W.11 as well as panch-witnesses and in the presence of them and the complainant, prepared spot-mahazar as per Ex.P4 and seized M.0.1-bangle pieces. Photographs were taken as per Ex.P2. He recorded the statement of the witnesses and deputed his staff to apprehend the accused. The accused was arrested on 9-10-1999 and was subjected to medical examination to confirm his potency. After securing the medical reports of the prosecutrix-P.W. 13 and the accused, filed charge sheet for the offence under Section 376 I.P.C.
The learned Sessions Judge secured the presence of the accused, framed the charges for the offence under Section 376(2)(f) I.P.C. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined P.Ws. 1 to 18, marked Exs. P1 to P23 and produced M.Os. 1 to 3. The statement of the accused was recorded under Section 313 Cr.P.C. The defence is one of total denial. The accused did not choose to lead any defence evidence. The learned Sessions Judge for the reasons stated in his Judgment, recorded a finding of guilt and convicted for the offence under Section 376 IPC and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 5,000-00, in default to undergo S.I. for a period of 3 months. It is this Judgment of conviction and sentence, which is questioned in the present appeal.
3. Learned counsel Sri Anant K. Navalgimat submitted that there is considerable delay of more than 24 hours in lodging the complaint. The prosecution witnesses viz., P.W. 1-Dadesab, P.W.2-Bibijan are the husband and wife, whereas the prosecutrix-P.W. 13 and P.W.3-Husseinsab are the daughter and son of P.W. 1 respectively. It has come in the evidence that there has been a dispute between P.W. 1 and his brother-Alisab and that they were not in talking terms. Therefore, their testimony cannot be relied and acted. Further submitted that it is clear from the evidence of P.W. 13 that she has been tutored to depose falsely at the instance of P.Ws. 1 and 2. That apart, the medical evidence of P.W. 8-Dr. S.M. Hulamani, P.W. 9-Dr. T.L. Shrinivas as well as the evidence of P.W.16-Dr. Usha establishes the fact that they did not find any injury or signs of Rape. When the medical evidence is so clear that rape has not taken place, the learned Sessions Judge by relying, on the evidence of P.Ws. 1 and 2, erroneously convicted the accused which is not sustainable and the evidence on record has not been properly appreciated. Further submitted that the accused is none-else than the cousin of the proseoutrix-P.W. 13. Therefore, there were no chance of the accused committing rape, as such and the accused has been falsely implicated on account of dispute over the land between P.W. 1 and his brother Alisab-father of the accused.
Learned counsel further submitted that even if the evidence of P.Ws. 1 and 2 were to be accepted to some extent, in view of the medical evidence, it does not constitute an offence under Section 376 IPC. At the most, it attracts Section 511 IPC. Lastly submitted that the accused was arrested on 9-10-1999 and he has been in custody till now. Thereby, he has completed imprisonment for more than 5 years. It is also submitted that the evidence of proseculive P.W. 13 is of no evidence in the eye of law as the oath was not administered to the translator in accordance with Sections 4 and 5 of the Oaths Act. If according to the evidence of P.W. 13, if the rape were to have taken place, definitely there would have been rupture and tear of vagina that too when the accused is aged of 22 or 23 years, using force in the act of intercourse. But, no such symptoms of rape are found. Therefore, the evidence of P.Ws. l, 2 and 13 are false and prayed to set aside the Judgment of conviction and sentence passed for the offence under Section 376(2)(f) IPC and to allow the appeal by acquitting the accused.
4. Learned Additional S.P.P. Sri. G, Bhavani Singh submitted that the findings of the learned Sessions Judge is based on the testimony of P.Ws. 1, 2, 13 as well as the evidence of P.W. 8-Dr. S.M. Hulamani, P. W.-9- Dr. T.L. Shrinivas and P.W. 16-Dr. Usha. Further submitted that, in the cases where the rape take places, there need not be always rupture of hymen, it depends on the force used in the act for commission of the offence. When the testimony of the prosecution witnesses particularly, P.W. 1 speaking of the fact, the accused making the prosecutrix to lay-down and noticing the accused doing an act of sexual intercourse itself is sufficient to hold the commission of the offence. Further submitted that the accused in fact had taken advantage of the disability of the prosecutrix who is a dumb by birth and though she happened to be his cousin sister, committing such a heinous act of sexual intercourse shows that the offence is committed against a young girl aged 10 or 12 years. Therefore, the findings and the reasoning of the learned Sessions Judge in convicting the accused does not call for interference. Accordingly, prayed to dismiss the appeal.
5. In the light of the submissions, the point for consideration that arises;
1. Whether the learned Sessions Judge, Belgaum, is justified in convicting the accused for the offence under Section 376(2)(I) IPC? If so, liable to be interfered with?
2. What Order?
6. Where the accused is charged for the offence under Section 375 IPC punishable under Section 376 IPC., the prosecution has to establish the offence by a clear and cogent evidence. The two essential ingredients of Section 376 IPC are;
i) Sexual intercourse by a man with a woman.
ii) The sexual intercourse must be under circumstances falling under any of the six clauses of Section 375 IPC.
It is for the prosecution to prove that there was a penetration.
In Modi’s Medical Jurisprudence and Toxicology, 22nd Edition, at page 495 states;
“Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occured or not is a legal conclusion, not a medical one”.
The observation made above makes clear that if there is slightest degree of penetration with or without ejectment, attracts the ingredients of Section 375 IPC. It is therefore quite possible the offence of rape may take place with or without causing injury to the genital organs or leaving any seminal stains. Therefore, it is for the Court to come to a legal conclusion.
7. It is asserted that P.W. 13 is a dumb witness. Therefore a duty cast on this court to examine whether the evidence of P.W. 13 is recorded as provided under Section 119 of the Evidence Act If so, such evidence recorded by the learned Sessions Judge can be acted upon. Section 119 of the Evidence Act reads thus:
“Where a person is disabled to speak, the evidence of such person can be recorded by signs made in open court and such evidence is admissible”.
Section 4 of the Oaths Act, 1969 provides for oaths or affirmation to be made by witnensses, interpreter and jurors, which reads as follows:
“4. Oaths or affirmations to be made by witnesses, interpreters and jurors-(1) Oaths or affirmations shall be made by the following persons, namely:-
(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors.”
Similarly, Section 5 of the Oath Act enables a witness or interpreter to make an affirmation instead of Oath. On a reading of Sections 4 and 5 of Oath Act, the interpreter as well as the witness both have to be administered oath before the Court proceeds to record evidence of a dumb witness. The Court while recording the evidence of dumb witness, must record both signs as well as the interpretations of the interpreter and then only it becomes admissible under the Indian Evidence Act. Therefore, it has to be seen whether the learned Sessions Judge recorded the evidence of dumb witness- P.W. 13 as stated above. The Court also should see what is the evidence placed on record so as to sustain conviction.
8. It is with this background, the testimony of P.Ws. 1 -Dadesab, P.W.2-Bibijan and the prosecutrix-P.W. 13 coupled with the medical evidence of P.Ws. 8, 9 and 16, have to be re-appreciated to find out whether the Judgment of conviction of the accused is sustainable.
9. It is well-settled principles that the evidence has to be read as a whole. It is the function of the Court to separate the grains from chaff. No hard and fast rule can be laid down for appreciation of evidence. It is after all a question of fact and each case has to be decided on facts as they stand in that particular case. A duty also cast on the Court to see that no person committing an offence should go scot-free. It is with this background, the evidence has to be scrutinized.
10. It is an admitted fact that P.W. 1 -Dadesab and the accused’s father Alisab are brothers. Both have constructed a thatched shed in their respective land and are residing with their respective wife and children by doing agriculture work. P.W. 1-Dadesab is residing in the said tatched shed with his wife-P.W. 2-Bibijan, daughter-P.W. 13-Prosecutrix, Son-P.W. 3-Husseinsab with other 2 sons Hazarathsab and Moulasab, whereas the accused Dilawarsab is residing with his father Alisab.
11. The evidence of P.W.1-Dadesab shows that his daughter-P.W. 13 is dumb with weak personality. Accordingly to his evidence, about a year or 8 months back, at about 11 a.m., or so, after going round to his lands and watching for some time was returning towards his house. When he came near the lands of Alisab, he heard the screaming voice. On hearing the loud voice, he went near the place and saw that the accued Dilawarsab was doing an act on his daughter as if the elders do. The accused on seeing him, ran away with his underwear, and that he questioned why he did so when she being the sister. His evidence further shows that the accused having removed his underwear and lungi was laying on his daughter though she was screaming. According to him, the neighbour-P.W.4-Sangappa enquired him as to why he is shouting, then he told the incident. It is in the evidence of P. W. 1 -Dadesab that he took his daughter to the house and informed the incident to his wife. He noticed bleeding from the private part and cloths were blood stained. According to his evidence that his wife P.W. 2-Bibijan treated the victim-P.W. 13 by applying turmeric and bathed her by changing the cloths. P.W.-1 Dadesab has further stated that he complained the act of the accused to Alisab. But, as he did not say anything, he approached the village elders namely Tukaram-P. W. 15, Adiveppagouda-P.W. 7. Also informed the incident to Dalapathi of the village viz., P.W. 5-Pandurang. P.W. 5 prepared the complaint as narrated by him. Then himself, the prosecutrix and his wife went to Saundatti Police Station and lodged complaint as per Ex. P1. It is in his evidence that the prosecutrix is his daughter through first wife late Husseinbie. According to his evidence the prosecutrix is a dumb and she used to tell by making signs. Further, she was knowing only the words “Appa”, “Amma” and “Bayya”. It is in his evidence that the police sent his daughter to Saundatti Hospital. From there the prosecutrix was directed to go to Belgaum Hospital and on the same day night they shifted her to Belgaum Government Hospital for treatment. It is in his evidence that on the next day the police came to the place of the incident, prepared mahazar. Thereafter seized the bangle pieces-M.O.1. He produced the washed cloths of the prosecutrix M.Os. 2 and 3 and they were also seized.
In the corss-examination, he has admitted that he has a house in the village Teggihal. But, he is not residing there and his brothers are residing in the said house, whereas he is residing in the land. He has further admitted that at Munavalli there is a Government Hospital and also private clinics and out-post police station. Also stated that his son Hazarathsab is aged 19 years, Moulasab is aged 18 years and daughter-P.W. 13-prosecutrix is aged 10years. Further stated that during 1992 he had given a police complaint against his brother in respect of land dispute, his brother Alisab was shown as accused before the Tahsildar and again stated that he do not know about the said fact. He has further stated that there were 7 or 8 thatched sheds nearby and at the time of the incident it was an agricultural season to work in the lands. Further stated that from the place of the incident to his thatched shed, the distance is about 300 ft. At a distance of 500 ft., there is a house belonging to Devappa. If one were to shout from that place, it can be heard. He has further stated, that he heard the screaming sound of his daughter from a distance of about 100 ft. When he was scolding, the accused was there itself. Also stated that Jowar crop were at the height of a person. He has further stated that when the accused was doing sexual intercourse, he saw it from a distance of 10 or 15ft. and that he saw the accused doing the sexual intercourse from his own eyes. Thereafter, he took his daughter to the house and noticed oozing of blood from her private part. Also seen stains of blood on the cloths.
In the further cross-examination, he has stated that on the same day he did not take his daughter to hospital at Munavalli and his daughter was treated by his wife by applying oil and made her to take bath. At about 2.15 p.m. he approached Alisab to take a decision in the matter, and also requested to approach the elders and put an end. On that day, as none of the elders were available at Munavalli, approached the elders of Jumma viz., Dilawar-Vantanala Imamsab and others. But, the parents of the accused did not come. Thereafter, he informed the incident to Dalapathi-P.W.5-Pandurang. On the next day he proceeded to Saundatti Police Station with his daughter and wife along with P. W. 5-Pandurang and P.W.15-Tukaram. He has further stated that his daughter was sent to Government Hospital on that night at about 9.00 p.m. and then sent to Belgaum Hospital.
In the further cross-examination, he denied the suggestion that in their Muslim Community, marriage between the cousins are not prohibited. He denied the suggestion that the accused did not have any sexual intercourse.
12. It is in the evidence of P.W. 2-Bibijan that she is the second wife of P.W. 1-Dadesab. Her marriage took place with P.W. 1 when prosecutrix-P.W. 13 was about 6 months child and stated that the accused is the cousin brother of her husband and that they are residing in a thatched shed constructed in their lands. She has further stated that prosecutrix-P.W. 13 is a dumb and that by signs she used to convey everything and stated that about 20 months back, her husband P.W. 1 as well as her 2 sons-Hazarathsab and Moulasab went to work in their lands. On that day at about 10.00 a.m. the accused Dilawarsab came and took P.W.3-Husseinsab and prosecutrix-P. W. 13 for collection of fodder from their land. Then her son-Husseinsab and P.W. 13-prosecutrix went with him.
It is in her evidence that at about 11.00 a.m. P. W. 3-Husseinsab returned with a bundle of fodder, whereas the prosecutrix- P.W. 13 did not come. When she enquired, her son told that she will come with the accused-Dilawarsab and that they are collecting the fodder. She has further staled that after about an hour, her husband came with her daughter- P.W. 13 and found that she was weeping. She has further stated that her husband informed while he was coming towards the house, he saw the accused doing an act of “visible world” and that he questioned him further, why you did it, she is your sister. Saying so, when he attempted to catch, he ran away.She has also stated that she was informed by P.W, 1. From there, he brought the girl to the house, whereas the accused ran away with his underwear and that when she enquired with her daughter, informed her by mentioning “bayya” and further informed by signals. She has further stated that on seeing the girl there was bleeding from vagina and the cloths were stained with blood. Then she applied garlic and turmeric to her private part and washed and changed the cloths. She has further stated that her husband went and informed the parents of the accused about the act of their son-Dilawarsab, According to her, her husband told not to go to hospital and that he wanted to have a panchayat with the leaders and to inform them. Then the elders told to give a complaint to The police. It is on the next day, herself, her husband with the girl went to the police station and gave a complaint and the police sent the girl to Saundatti Hospital for treatment and from there the girl was sent to Belgaum Hospital and was treated for 5 or 6 days.
In the cross-examination, she has stated that she came to know the incident only after her husband came and informed. She denied the suggestion that the accused-Dilawarsab was in the village itself and that she is deposing false. She denied the suggestion that the accused did not come and took Husseinsab and her daughter-P.W. 13 for collecting fodder from their lands. She has stated that her husband’s brother is cultivating the lands separately and they have catties. She has further stated that her daughter P.W. 13 is ignorant, sometimes she wear under wear and sometimes she does not wear, and it she who used to bath her daily and dressing. According to her evidence, there was blood to the extent of an area of palm over her private part and there was also injury to her private part. Also stated that blood was oozing drop by drop till next day morning, and stated that even when words were sent to the accused’s father to show what is happening, he did not turn up. It is thereafter, they informed to the elders. She has also stated that when she asked her husband to take the girl to hospital, he refused to take her to hospital and said that he does not bother even she dies and that he wanted to inform the elders. It is there after the elder told him to inform the police as the matter could not be solved. Then they went to Saundatti Police with the girl and that she was sent to Saunatti Hospital, from there to Belgaum Hospital and stated that the Police prepared the mahazar and collected bangle pieces-M.O.1.
In the cross-examination, she has stated that the accused has 5 brothers, 3 sisters and stated that the uncles of the accused have not put up any shed in the land.
13. P.W. 3-Husseinsab, son of P.W. 1 in his evidence has stated that P.W. 13 is her sister and that they are residing in a thatched shed put up in their land and that he know the accused who is the son of his uncle and stated that the accused’s father has also put up a thatched shed by the side of their land. He has further stated that on the day of the incident, their father had been to the land to do work, whereas himself and his sister-P.W. 13 and their mother were in the house. At that time, the accused came and took him and his sister-P.W. 13 to his land for collecting fodder, then they went along with him. The accused collected the fodder and made a bundle and asked him to go to the house saying that he will make one more bundle and give it to his sister P.W. 13. Then he returned with the bundle to the house, whereas his sister remained with the accused, he told the same to his mother. After sometime, his father P.W. 1 came with his sister-P.W. 13 and she was weeping and that P.W. 1 was telling that the accused was laying on his sister.
In this regard, in the cross-examination, he has stated when he went to collect the fodder, he was their for about half an hour and his sister came after about an hour and stated that there was swelling over her private part and her mother applied turmeric.
In the further cross-examination, he has stated that after the incident, the accused-Dilawarsab was not found in the village.
14. P.W. 13 is the prosecutrix, whose evidence was translated by the teacher of Deaf and Dumb School, Belgaum, namely Smt. S.S. Hiremat, which reads as follows:
15. P.W. 5-Pandurang, Datapathi of the village speaks of the fact of preparing a complaint as narrated by P.W. 1-Dadesab and thereafter, P.W.1-Dadesab went to Saundatti Police Station along with his wife and daughter and lodged the complaint.
16. P.W. 7-Adiveppa and P.W. 15-Tukaram, elders have advised P.W. 1 -Dadesab to give a complaint. That the evidence of P.Ws. 7 and 15 is not of any consequences.
17. The testimony of P.W. 1 -Dadesab, P.W. 2-Bibijan as well as the testimony of the prosecutrix-P.W. 13 have to be read along with the medical evidence of P.W. 8-Dr. S.M. Hulamani, P.W. 9-Dr. T.L. Srinivas and P.W. 15-Dr. Usha so as to find out which of the evidence is reliable.
18. Dr. S.M. Mulimani-P.W. 8 in his evidence has stated that he was working as Chief Medical Officer at General Hospital, Saundatti. On 28-9-1999 at about 2.30 p.m. he received a patient (prosecutrix)-P.W. 13 aged about 10 years through a woman police and stated that he noted the identification marks of the girl. On right side of the chest there is bum-scar and below the unbilicus there is old scar. Then he referred the case to a Lady Medical Officer for necessary examination and stated that the Lady Medical Officer has opined that the patient was not co-operating for examination of her private part. Therefore, on 28-9-1999 the patient was referred to the District Hospital. He has further stated that he opined that there are no signs of rape and that he has furnished his opinion on the basis of the report of the District Hospital of Belgaum and the report is at Ex. P7. Also stated that he has made an entry in the M.L.C. register at Ex.P10. Also slated that he has seen the girl when she was brought to the General Hospital, Belgaum, for examination.
In the cross examination, he has stated that in Ex.P10-M.L.C. register, it was written on 28-9-1999. He has written the findings in “Kannada” and after that he put his signature. Also stated that he is seeing the girl today only for the second time. Further stated that if a person falls on the victim forcibly to commit rape, there will be more injury on the body and that he did not found as to whether any treatment was given to the victim before he examined.
19. P.W. 9-Dr. T.L. Shrinivas in his evidence has stated that he was working as R.M.O. at District Hospital, Belgaum. On 28-9-1999, the girl was referred by C.M.O., Saundatti Hospital and stated that he admitted her on 28-9-1999 and was discharged from the hospital on 2-10-1999. Further stated that on examination, he found the following:
1. There were no external injuries.
2. On local examination, external genitalia was normal,
3. Hymen intact.
4. Vaginal smear was taken-report says that no sperms detected in the smear.
Further his examination reveals that;
1. Breast, axillary hairs, public hairs were not developed.
2. She has not attained menarcy.
3. Her dental estimation of the age is between 12 to 14 years.
4. Radiological assessment of the age is between 15 to 17 years.
Further stated that the victim was examined by the District Hospital by Gynaecologist-Dr. Champa Koppad. As per the report, secondary sexual characteristics are absent. Public and axillary hairs are absent. External genitalia was normal. Hymen intact. No evidence of external injury. Further stated that she was examined by the dental surgeon Dr. Nashi. She has assessed the dental age between 12 to 14. As per the radiological information, the age of the patient is between 15 to 17 years and stated that he has produced 3 X-rays as follows:
1. X-ray of the wrist: Presence of Psiform bone of the right wrist suggests that she is 12 years of age.
2. X-ray of the right shoulder: the non-union of the shaft of the bone of the acetabuim suggest she is below 17 years.
3. X-ray of the right hip joint: The non-union of the trochantor of the shaft of the femur suggest that she is below 18 years.
He has further stated that the age of the girl was about 12 to 18 years and below 18 years and the X-rays are at Exs. P11,12 and 13 and report is at Ex.P8. The case sheet is at Ex.P14. Further stated that, according to his examination and opinion, the hymen of the victim was intact. If there is partial penetration, there will not be rupture of hymen. If there is forcible attempt in committing rape, there will be pain on the external genitalia.
In the cross-examination, he has stated that unless they examined in detail, it cannot be said that hymen is ruptured or not. By mere external examination it is not possible to say whether hymen was intact or ruptured If there is penetration, there will be rupture of hymen and also there will be bleeding.
20. It is in the evidence of P.W. 16 Dr. Usha Dhananjaya Wasunkar that she was working as senior specialist in the General Hospital, Saundatti. At that time, one Dr. Hulamani was working as medical officer in the hospital and stated that she examined the girl aged 10 years on 28-9-1999 brought by women P.C. accompanied by her mother and stated that earlier to her examination, she was examined by Dr. Hulamani and thereafter the girl was referred to her. She has taken consent of her mother and examined. On examination, she found;
“There was no evidence of injury over the body. The girl is dumb. On examination she found labea was normal, breast were not developed. Hair not grown. Patient was taken both and changed her cloth 2 days prior to her examination. Mo injuries were seen over the labea. Forcnette-Laceration was present. Hymen was absent. Vaginal admits tip of thumb, but patient was not cooperating and she has taken two slices with difficulty and handed over the same to the woman P.C. and referred her to Civil Hospital, Belgium.
Further stated that she has made entries in the M.L.C. register. She found the girl could have been raped in view of the fact that hymen was absent and stated that she has not gone through the report of the Civil Hospital, Belgaum. Further stated that there are instances even in case of rape, hymen could not be ruptured.
In the cross-examination, she has stated that she did not verify the report of Dr. Hulamani, before examining the girl and that she did not give any medical report to the I.O. Also stated that the victim girl has not attained puberty and that she did not find any bleeding. She did not give any first aid treatment to her. Also stated that she did not verify the report of the District Hospital.
In the further cross-examination she has stated that without internal examination, it is not possible to say definitely that the hymen is ruptured or not. She also stated that if there is intercourse on the virgin woman-whether voluntarily or not, and if there is any rupture of hymen, there will be margins ragged and stated that in Ex.P10, she has not given any opinion regarding sexual intercourse.
21. P.W.10-Dr. G.B. Nyamagoudar and P.W. 14 Dr. E.T. Choudhari who examined the accused to find out whether there were any injuries, opined that there are no evidence of recent forcible intercourse was found. So also there were also no abrasion on his (accused) genital organs.
Similar is the evidence of P.W. 14 that he did not found any evidence of recent forceful intercourse.
22. From the evidence of P.Ws. 10 and 14 it shows that the accused is physically fit to do sexual intercourse. But, there is nothing to show that any recent act of sexual intercourse. On a careful scrutiny of the testimony of P.W. 8-Dr. S.M. Hulamani, it reveals that he did not find any sign of rape. So also the medical evidence of P.W. 9-Dr. T.L. Shrinivas reveals that the victim was in between the age group of 12 to 14 on dental examination and in between the age group of 15 to 17 according to the radiological assessment.
23. It is nodoubt true that P.W. 16-Dr. Usha opined that in the circumstances even in case of rape, hymen would not be ruptured. But, we are concerned with this case as to whether there is any symptoms of rape or any such penetration has taken place. It is clear from the evidence that according to the victim her age is about 10 or 12 years and she is a dumb. The physical growth is not normal as is found from the medical evidence. If assuming for a while, forcible sexual intercourse were to have taken place on a girl aged about 10 to 12 years and the pentration were to have been taken place, it is needless to say that there will be rupture of vagina at least with some tear. The doctors who examined the prosecutrix-P.W. 13 did not find any injury over the private parts. Therefore, there could not have been any penetration so as to hold that the rape has taken place. If some injuries or lacerations, abrasions or swelling were to have found over the vaginal portion, it could have been held that there is penetration and a forcible sexual intercourse had taken place. But, there is no such acceptable evidence available on record. Therefore, only on the ground that the hymen may or may not be ruptured itself is not sufficient in the present case to hold that the rape has taken place. Therefore, the reasoning of the learned Sessions Judge relying on the evidence of P.W.16 coming to the conclusion that the penetration has taken place is not sustainable. As is found from the medical evidence of P.Ws. l0 and P.W. 14, the accused is a well nourished person having the potency to have sexual intercourse and his genital organs are also well grown. If the organs were to have penetrated to a girl, definitely there would have been a mark of tear of vagina or abrasion or swelling as such, which is not found in the present case.
24. Now coming to the evidence of the victim herself, the minor, in which the evidence of P.W.13 is recorded is unwarranted. The learned Sessions Judge has not even taken pain to read Section 119 of the Evidence Act to know the manner in which the evidence of deaf and dumb witness has to be recorded.
25. The High Court of Gujarath while considering the evidence of a dumb witness in the case KUMBHAR MUSA ALIB v. STATE OF GUJARAT . Thus observed:
“The appellant was convicted under Section 326, Indian Penal Code, by the learned Sessions Judge, Kutch, for assaulting one Ibrahim. After the assault, he became unconscious and subsequently regained consciousness, but he lost his power of speech. His evidence was, therefore, given by signs under Section 119 of the Evidence Act. If evidence is recorded under that Section, there must be a record of signs and not the interpretation of signs. It is true that at some places, the learned Sessions Judge has recorded the signs as well as the interpretations, but the signs made by the witness in answer to several other questions are not recorded but only the interpretations. This is not a correct compliance with Section 119 of the Indian Evidence Act. This also does not enable the appellate Court to know whether the interpretation of the signs is correct or not”.
As already pointed out, when a deaf and dumb witness has to be examined, firstly the Court has to assess the competency of the interpreter after satisfying itself the Court has to administer oath and such an interpreter become a witness of the Court. Then the oath has to be administered to the deaf and dumb witness through the interpreter as the court will not be knowing the language or sign as to how the oath has to be administered to such witness.
26. In the present case, it is unfortunate on the part of the learned Sessions Judge that he has not even considered the provisions of Sections 4 and 5 of the Oaths Act, 1969 to know the procedure to record the evidence of a deaf and dumb witness.
27. The questions put to deaf and dumb witnesses have to be recorded by signs and the answers so given by signs have to be interpreted and answers have to be recorded. But, that is not so in the case on hand. It is such evidence given by signs is admissible and is to be taken as oral evidence. In the present case, as the procedure laid down under Section 119 of the Indian Evidence Act is not followed, such evidence recorded by the Court, without recording the signs is no evidence.
28. In the case of MEESALA RAMAKRISHNA v. STATE OF ANDHRA PRADESH 1994 AIR SCW 1978, while considering the evidence given by signs at para 15 thus observed:
“15. The Privy Council decision is however the main judgment on which the learned Judges of the High Court have relied in as much as the two other decisions have relied on what was held by the Privy Council. In that case as well (which came from Ceylon) the appellant had been convicted of murder. The victim’s throat had been cut and she was not in a position to speak but on being questioned regarding the person who committed it, she answered by signs and nods. The question which was examined by the Privy Council was whether the statement was relevant and admissible. It was held that the statement constituted a verbal statement resembling the case of a dumb person and was relevant and admissible. It was pointed out at page 26 that Section 32 of the Ceylon Evidence Ordinance (which is in pari materia with Section 32 of our Evidence Act) has used the word “verbal” and not “oral”. Reference was made to Sections 3 and 119 of the Ordinance in this connection. Parallel Sections in our Evidence Act being also 3 and 119. In Section 3, which is the interpretation clause, while defining “Evidence” it has been stated that it means and includes, inter alia, “oral evidence”. Section 119 deals with dumb witnesses and states that he may give his evidence in any manner in which he can made it intelligible, as by writing or by signs. As to this evidence it has been stated the same shall be deemed to be oral evidence. These show that evidence given by signs as well is admissible and is taken to be oral evidence”.
The judicial pronouncement clearly laid down the procedure to be followed in recording the evidence of deaf and dumb and the manner in which it has to be recorded, which is absent in the present case. Therefore, on this count also, the testimony of P.W. 13 is of no consequences and the same is not admissible in evidence.
29. In the light of the medical evidence discussed as above, it has to be carefully scrutinized the testimony of P.W. 1 who is said to be an eyewitness for the incident of rape committed by the accused on his daughter P.W. 13. If the court finds that the testimony of P.W.1-Dadesab is credible, trustworthy, then to what extent his evidence is admissible. In the light of the established facts in issue, Section 3 of the Evidence Act laids down the fundamental rules for appreciation of the evidence of the witnesses. The court should consider what are the true facts, such evidence should not give room for any conjectures and surmises. It is also well-established principle that suspicion does not take a place of proof.
30. It is in the evidence of P.W. 1-Dadesab that he is residing in his lands having constructed a thatched shed along with his wife and children and that there are about 7 or 8 huts at a distance. According to him the accused’s father-Alisab has also put up a thatched shed in the portion of his land and staying there. It is in his evidence that about one year 8 months back, during morning, he left the house to keep a watch over his land. While he was returning towards the shed, heard the screaming of his daughter. He rushed to the place and saw that the accused had made the girl to fall down and was under the illusion of sex world. On seeing him the accused ran away with his underwear, whereas his daughter was wearing petticoat and it was moved. According to his evidence the accused had kept his underwear and lungi by the side and laid on her whereas his daughter was struggling and screaming. It is also in his evidence that P.W.4-Sangappa was grazing the catties nearby and he informed the incident to Sangappa. It is thereafter he took his daughter to the hut and informed to his wife. According to him that there were stains of blood over her cloths. From the evidence of P.W. 1 it is forthcoming that P.W.2 applied turmeric to the private part of the victim, washed and bathed her. When informed about the act of the accused-Dilawarsab to his father Alisab, he did not show any interest. According to P.W. 1 that he wanted to settle the matter there itself. Therefore, he did not go to hospital at Munavalli. It is only when the elders P.W.7 and P.W.15 told him to go and lodge complaint, he went to Saundatti Police Station and lodged complaint. The Police, Saundatti sent the girl to the Government Hospital for examination of the girl and treatment. From these, the girl was sent to Belgaum Hospital for further treatment. On a careful examination of the testimony of P.W.1 it shows that the accused had made an attempt to have a forcible sexual intercourse. It is by that time, he rushed to the spot on hearing the screaming sound of his daughter. The accused on seeing P.W. 1 filed away from the place.
31. It is the evidence of P.W. 2-Bibijan and P.W.3-Husseinsab, brother of the prosecutrix-P.W.13 that it is the accused who came to their thatched shed and took P.Ws. 3 and 13 saying that he will collect fodder and give it to them. But the evidence of P.Ws. 1 to 3 clearly establishes the fact that they were not in talking terms with the Alisab, father of the accused and the relationship was also not good. When that is the evidence, it is further difficult to accept that the accused went to the house of P.W.I and brought P.Ws. 3 and 13 to his land for collecting fodder and making bundle. According to the evidence of P.W.3-Husseinsab, he carried the bundle of fodder, whereas his sister P.W.3 remained in the lands as the accused told him to go and that he will bring another bundle of fodder. It is also in the evidence of P.W.13 that his sister P.W.3 brought a bundle of fodder. But, that is not the evidence of P.W.1-Dadesab. If really P.W.13 was the victim of sexual injuries, could not have carried bundles on her head. Further it is the case of P. Ws. 1 and 2 that the cloths of the victim were washed. Though the cloths M.Os. 2 and 3 were seized by the police, they were not sent for F.S.L. examination. Therefore, the testimony of P.Ws.1 and 2 that there was oozing of blood from the vaginal part of P.W.13 cannot be believed at all in the light of the medical evidence available on record. The evidence of P.W.1 at the most even for-the argument sake is accpted, the accused has made an attempt to commit an offence of rape, but such an attempt could not be completed, therefore, the offence does fall under Section 376 r/w. Section 511 I.P.C.
32. In the present case, the medical evidence is being negative having not noticed any injury over the private part and there being no penetration, the evidence of P.W. 1 to the fact that he witnesses the actual sexual intercourse by the accused on his daughter cannot be accepted. At the most, the accused has made an attempt to commit an offence.
33. The non-compliance of the provisions of Sections 4 and 5 of the Oaths Act and the evidence is not being recorded as required under Section 119 of the Indian Evidence Act, the evidence of the prosecutrix cannot be accepted.
34. If the testimony of P.W. 2-Bibijan is credible and trustworthy, having deposed that there was bleeding from the vaginal portion and that she applied with garlic and turmeric on private parts, washed it and made the child to take bath, the doctors would have definitely found at least abrasion mark or a swelling even though it is more than 24 hours. Normally if a rape takes place on a girl aged about 10 or 12 years, there will be sufficient medical evidence available i.e., tear of vagina and such other marks even if it is more than 24 hours. But, no such injuries are found by P.Ws. 8, 9 and 16, who examined and gave the report. It is not coming out from the evidence of P.W.16 that for what purpose the victim was admitted for hospital. On a careful examination of the case sheet, the doctors have not stated for what reason the child was admitted. That apart, when the doctors have clearly stated that no rape has taken place, the other evidence available are of formal, which does not require for consideration in detail. P.W. 5-Pandurang is a Dalapathi, who prepared the complaint at the instances of P.W.1. Therefore, no fault can be found in preparing such a complaint. It is the natural conduct of human beings to approach the Dalapathi of the village when something takes place. Therefore, the frequent visit of the Dalapathi to the Police Station and preparing of a complaint is of no consequence.
35. In the present case, the learned Sessions Judge without proper appreciation of the medical evidence and also not following the procedure in recording the testimony of the prosecutrix-P.W.13, out of exaggeration, only on the basis of conjectures and surmises held the accused guilty for the offence under Section 376 IPC., which is liable to be interfered with.
36. Analysing the testimony of the doctors-P.Ws. 8, 9 and 16 and the victim’s father P.W.1-Dadesab, P.W.2-Bibijan and P.W.3-Husseinsab-brother of the prosecutrix, I am of the clear opinion that the evidence does fall under Section 376 r/w. Section 511 IPC. In a similar circumstances, in the case of KOPPULA VENKAT RAO v. STATE OF ANDHRA PRADESH, at para 10, 11 and 12 observed as follows:
“10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an at done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consumption, and possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly shows the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify Ms passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375, IPC refers to “sexual intercourse” and the Explanation appended to the section provides that penetrationis sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view.”
Then case on hand also stands on the same set of facts and circumstances. The evidence of P.W. 1 only reveals that on hearing the screaming sound of his daughter, rushed to the spot, it is then noticed that the accused was laying on his daughter and attempting to commit rape. But, not succeeded and filed away from the place. Therefore, the offence do fall under Section 376 r/w Section 511 IPC.
For the forgoing reasons, the appeal is allowed in part.
The conviction of the accused for the offence under Section 376(2)(f) IPC is altered to one under Section 376 r/w. Section 511 IPC.
It is on record that the accused was arrested on 9-10-1.999 and still he is undergoing custodial sentence and completed 5 years 4 months. Therefore, the accused is sentenced for the period already undergone and he is ordered to be set at liberty forthwith, if not required in any other case.
The sentence of fine imposed does not call for interference. The appeal is allowed to the extent indicated.