JUDGMENT
R.B. Naik, J.
1. The appellant/ accused has preferred this appeal challenging the order of conviction and sentence dated 7-8-2002 passed by the Sessions Judge, Udupi District in SC. No. 12/2001 convicting the appellant/accused for an offence punishable under Section 376 and 506 IPC and sentencing him to undergo R.I. for 12 years and to pay a fine of Rs. 3000/- in default to undergo R.I. for six months for an offence punishable under Section 376 and to undergo R.I. for six months for an offence punishable under Section 506 IPC.
2. The brief facts of the prosecution case are as follows:
That on 14-5-1997 at about 12-30 p.m. when RW. 2 Kum. Arifa a girl aged about 8 years was returning to her house near Forottu Forest area of Kalya grama of Karkala Taluk, appellant/accused held her and forcibly dragged her into the said forest, held threats to her life and committed rape on her.
3. The prosecution in support of its case has examined P.W. 1 to P.W. 10, got exhibited Exs. R1 to P. 12 and got marked M.O. 1 to M.O. 7. The defence has not led any evidence.
4. P.W.2 Arifa is the prosecutrix in the case. At the time of giving evidence before the Court, she was aged about 13 years and as on the date of incident she was only 8 years. She has stated in her evidence that P.W. 3 Judeba is her mother and P. W.7 Hasanabba is her father and during 1997 she was studying in II Standard. She along with C.W. 6 Nafeega and C.W. 5 Sabeena at about 8’o clock were going to Nitte Masjid for reciting Quaran on every day barring Thursday. On the date of the incident at about 12.30, appellant/accused, Karunakara Shetty aged 48 came and pulled her hand. The prosecutrix P.W. 2 resisted. Even then accused/appellant dragged her to the forest area. The friends of the prosecutrix Sabeena and Nafeesa ran away towards their houses. The appellant/accused having dragged P.W. 2 prosecutrix compelled her to sleep her on the ground. The prosecutrix started wailing out. The appellant/accused threatened her stating that he would do away with her life and made her to sleep on the ground. He removed her under garment and he too removed his under garment and thereafter forcibly committed rape on her. While giving evidence in the Court, the prosecutrix started weeping as observed by the trial Court and after giving courage to her she narrated the incident in question. She being of tender age has narrated the incident in her own way. She has also stated that she suffered immense pain in her private part The accused appellant after committing offence of rape gave her Rs. 5A and asked her to come at 7’o clock on the next day. At that point of time, the uncle of prosecutrix one Rafiq and her mother Jubeda came to the scene of occurrence. On seeing them, the appellant/accused held the neck of P.W. 2, the prosecutrix and threatened the uncle and mother of P.W.2 saying that he would kill P.W. 2 if they were to come near him and then thereafter he ran away from the scene of occurrence. P.W. 2 has also stated that her private part was soiled because of the illegal act committed by the appellant/accused. Because of the said act she was getting wild dreams and was scared in her sleep also. When she went to her house along with the uncle and mother, her father was not in the house. He came back only in the evening. On the next day i.e., on 15-5-1997 she along with her father went to the Police Station. The oral complaint lodged by P.W. 2 was reduced to writing in Kannada language. The same is marked as Ex. P.3. P.W. 2 has subscribed her signature to Ex. P.3 and the same is marked as Ex. P.3(a) and on 15-5-1997 the police were taken to the place of occurrence and there they found the under garments of the prosecutrix and the foot wear of the appellant/accused. They seized the same under mahazar Ex.P.4. They also seized the under garment of prosecutrix which is marked as M.O. 1 and the chappals seized is marked as M.O. 2. The frock is marked as M.O. 3 under mahazar Ex. P.5.
5. P.W. 2 the prosecutrix has also stated in her evidence that after coming back to the house along with her mother and uncle she was given bath by her mother and then thereafter on the next day she was taken to the doctor P.W. 1 for examination. The doctor examined the private part of P.W. 2. She has also stated that there was bleeding present in her private part. In her cross-examination it is suggested that the parents have tutored her and she has been giving false evidence implicating the appellant/accused. It is also stated that on the date of incident Sabeena and Nafeesahad accompanied her to the Masjid. That on the next day of incident her father and P.W. 2 had gone to the Police Station and they had reached the police: station within 15 minutes and it was at about 5.30 p.m. the police after gathering the information from P.W. 2 recorded the same in the form of a, complaint. It is suggested that the Police had not gone to the scene of occurrence and they did not seize the undergarments and chappals and no mahazar was drawn at the scene of occurrence. It is also suggested that the accused/appellant did not drag her to the forest area and he did not commit any offence at all and he has been falsely implicated to take revenge against him. It is also suggested that at the instance of her parents P.W. 2. has given false evidence before the Court and she has lodged a false complaint against the appellant/accused. All these suggestions made to P.W. 2, the prosecutrix, have been stoutly denied by P.W. 2, the victim of the incident in question who was of tender age of 8 years on the date of incident and she was hardly 13 years old on the date when she was examined before the Court. The tenor of evidence given before the Court and the nature of cross-examination would reveal that it was the appellant/accused who had committed the inhuman act of rape on tender aged girl of 8 years and the evidence of P.W. 2, the prosecutrix inspires confidence in the Court to rely on the evidence of P.W. 2 the prosecutrix.
6. The evidence of P.W. 2 prosecutrix finds support from the evidence of Dr. Mohini, P.W. 1 who examined the prosecutrix on the next date of the incident i.e., 15-3-1997 who was taken to the doctors by the police. She has on examination has found that the hymen of P.W. 2 was ruptured but however there was no bleeding present. She has also stated absence of hymen in tender age could be due to rape. Further the rupture of hymen may not produce any injury and the injury due to the rupture of hymen will heal within 28 to 45 hours. The hymen will rupture in tender age while they play or ride cycle. She suspected that the girl had been subjected to forcible intercourse. Her examination did not reveal that there was spermatozoa found in the smear sent to her and such an evidence cannot be found if the victim is examined 24 hours after the act of intercourse. She has issued a certificate as per Ex. P.1. The requisition sent by the police for the examination of P.W. 2 on 15-5-1997 is also produced by the doctor P.W. 1 which is marked as Ex. P.2. She has also stated that in the injury certificate the name of the offender is shown as Karunakara Chouta instead of Karunakara Sherry by oversight. The evidence of P.W. 1 has not been discredited in the cross-examination of P.W. 1 by the appellant/accused. Except suggesting that hymen would be ruptured by introducing a finger and that she could not render an opinion wilhout the chemical examiners report and that she did not find any bleeding in the private part of the prosecutrix. Nothing is brought about in the cross-examination to discredit her evidence. On the other hand in the cross-examinatiri P.W. 1 has clearly stated that the prosecutrix victim girl informed P.W. 1 that she was made to lie on the ground by the appellant/accused; he touched all parts of the body and he did something to the private part of the victim prosecutrix, in her own language.
7. P.W. 3 Jubeda is the mother of the victim girl, P.W. 2. She has given evidence to the effect that her daughter along with Nafeesa and Sabeena who were children of her husband’s sister were all going to Nitte Masjid for reciting Quaran and they were returning to the house at about 12’o clock. Masjid was located at a distance of one mile from her house. She had seen the appellant/accused Karunakara Shetty. That on the date of the incident Nafeesa and Sabeena informed her that the appellant/accused had dragged the victim girl at 12’o clock into the forest. On so being informed P.W. 3 along with Rafiq, Sabeena and Nafeesa went towards the place of occurrence. They made a search for the victim girl and accused for about 15 minutes and they found the appellant/accused who was found lying on P.W. 2. Immediately after seeking P.W. 3, the appellant/accused held the neck of the prosecutrix P.W. 2 and threatened that he would kill her if P.W. 3 and others who were there were to approach near the scene of occurrence. He also found that the under garment of her daughter was not there. Her frock was lifted up. She made enquiries with her daughter and she informed about the incident in question. She also found the traces of rape on the private part and thigh of the victim girl. There was swelling of the private part. She took her to the house and gave bath at 7 p.m. Her husband came and he too was informed about the incident. This witness was also extensively cross-examined by the defence. It is suggested that her daughter and the daughters of the appellant/accused were going to the same school and they were quarrelling and because of the said fact the appellant/accused was falsely implicated in the case. She has denied such a suggestion. In the cross-examination she has specifically stated that on seeing her the accused appellant ran away from the scene of occurrence and the undergarments of her daughter had fallen in the forest itself. After the prosecutrix was brought back to the house she was given bath and her clothing was changed. She has denied the suggestion that the accused/appellant had been falsely implicated and that he has not committed any offence at all and he did not hold any threats to any one by holding the neck of prosecutrix P.W. 2. That there was nothing found on the private part of the prosecutrix. Such suggestions are deniedby P.W.3.
8. P.W. 4. Rafiq is the uncle of prosecutrix P.W. 2. He has stated that on 14-5-1997 when he was having food in his house Nafeesa and Sabeena came and informed that P.W. 2 Arifa had been dragged into the forest by the appellant/accused and on receiving such information, himself, Judeba, Asiya, Nafeesa, and Sabeena went towards forest area and Sabeena and Nafeesa led the others to the forest where the appellant/accused had taken the prosecutrix P.W. 2. They searched for them for some time and after going for a distance of about 1/2 a furlong they found that the appellant/accused had dragged P.W. 2 into the forest. On seeing P.W. 3, P.W. 4 and others, the appellant/ accused who was found lying on P.W. 2 the prosecutrix held the neck of the prosecutrix, held threats to P.W. 3 and P.W. 4 that if they were to approach near, he will do away with the life of the prosecutrix P.W. 2 and thereafter ran away from the scene of occurrence. P.W. 3 and P.W. 4 went near the victim girl and found that she has been ravished and raped by the appellant/accused and there were traces of rape found on the private part and thigh of the prosecutrix. On enquiry she narrated the incident and also narrated that the appellant/accused had given Rs. 5/- and ran away from the scene of occurrence. She has given minute details of the action of the appellant/accused at the time of the commission of the rape. In the cross-examination it is suggested to this witness that the brother’s children of P.W. 4 and the children of the appellant/accused study in the same school and that there was quarrel between the children among themselves and because of the said quarrel both the families were at logger heads and because of the same a false case has been lodged against the appellant/accused. This suggestion has been denied by P.W. 4. It is also suggested to this witness that he has not made any statement before the police and he had not gone to the police station at all. Further when he went to the scene of occurrence. He did not find the appellant-accused lying on P.W. 2 and appellant/accused was not present there at all. All these suggestions have been denied by P.W. 4 and nothing has been brought on record in the cross-examination to disbelieve the evidence of P.W. 4.
9. P.W.5 Susheela N. is the Head Mistress of Madari Higher Primary School. She has issued Ex. P.6 the Birth certificate of P.W. 2. Arifa, the prosecutrix and she has stated that as per the school entries her date of birth is entered as 27-5-1990. Thus P.W. 2 was aged 7M years as on the date of the incident and not even 8 years. It is only suggested in the cross-examination of this witness that the said entries would be made on the basis of the information furnished by the parents. The cross-examination does not discredit the evidence of this witness.
11. P.W. 7 Hasanabba has given evidence to the effect that he knows the appellant/accused and his house is located half a kilometer away from the house of appellant/accused and that Arifa, the victim girl is her daughter. P.W. 3 Jubeda is his wife. P.W. 4 Rafiq is his brother. Asiya, Sabeena and Nafeesa are his sister’s daughters. P.W. 2 Arifa and his sister’s daughter were going to Majid to recite Quaran and that on 14-5-1997 he had gone to work and returned to the house at about 7-30 in the evening. As soon as he returned his wife Jubeda and daughter Arifa were found crying and when he made enquiries they informed that the appellant/accused had dragged P.W. 2 prosecutrix in to the forest and had committed rape on her. P.W. 7 on coming to know about this he was shocked. On the next day he took his daughter P.W. 2 to the police station where she narrated the incident to the police and it was reduced to writing and her signature was taken. In the cross-examination it is suggested to this witness that the children of the appellant/accused and P.W.2 were going to the smae school and that there was a quarrel between them and because of the said aspect, the appellant/accused was falsely implicated in a heinous offence of rape. It is also suggested to this witness that he has made application seeking compensation from the Government with regard to the incident in question; that he was instructed in getting prepared a complaint and getting it lodged through police and that P.W. 2 who was the daughter was incapable of lodging such a complaint. All these suggestions made to P.W. 7 have also been denied by him.
12. P.W. 8. Dr. P.J. Bhat is the doctor who examined the appellant/accused on 16-5-1997 after his arrest by the police and he has found the appellant/accused to be competent to have sexual intercourse and he has issued a certificate as per Ex. P.8. He has been cross-examined by the defence but nothing much is brought in the cross-examination except suggesting to this witness that potentiality of an individual depends on the age of the person and that there is no injury found on the appellant/accused when he was examined by the doctor.
13. P.W. 9 K.S. Sundar Raj is the P.S.I. of Karkala Rural Police Station. On 15-5-1997 at about 2.30 when he was SHO of the Police Station, Hasanabba of Kalya village along with Arifa, the prosecutrix came to the Police Station and on making enquiries she stated that one Karunakara Shetty had committed rape on her on the previous day and her statement was reduced into writing and the signature of P.W. 2 was taken as per Ex. P.3(a) and on the basis of the same he registered a case in Cr. No. 59/97 and forwarded the FIR to the jurisdictional Magistrate and also to all the higher officers. On receiving the information the CPI came to the Police Station and took further investigation from P.W. 9. He also forwarded the prosecutrix victim P.W. 2 to medical examination along with the requisition Ex. P.2. He has also stated in his evidence that on observing the prosecutrix P.W. 2 he found her to be scared and she was weeping when giving statement to the police. In the cross-examination of this witness it is suggested that the victim had not given the name of the appellant/accused while lodging the complaint. He has denied such a suggestion. It is also suggested that victim girl did not lodge a complaint as per Ex. P.3 and he did not record any statement of hers. The said suggestions made to P.W. 9 has also been denied by him. The cross examination does not discredit the evidence of P.W. 9.
14. P.W. 10 H.D. Mendonsa is the CPI who took over further investigation from P.W. 9. He went to the scene of occurrence on 16-5-1997. He drew mahazar of the scene of occurrence as per Ex. P.4. He seized M.O. 1 and M.O. 2 and also prepared a sketch of the scene of occurrence as per Ex. P.10. He also seized the frock M.O. 3 of victim girl and the five rupee note given by the appellant/accused to the hands of P.W. 2 at the time of commission of the offence. The same is marked as M.O. 4. It was seized under mahazar Ex.P.5. He recorded the statement of Jubeda, Nafeesa, Sabeena, Asiya and Rafiq and on the very day at about 11-45 p.m. the appellant/accused was produced before him by the Police personnel of Karkala Police Station. He caused the arrest of the appellant/accused. He made a statement that he would produce the clothing worn by him at the time of incident. He seized the same in the presence of the witnesses under ahazar Ex. P.11. The clothing are M.O. 5 Pant, M.O. 6 shirt and M.O. 7 is the under garment of the appellant/accused. He forwarded the P.F. of the seized articles to the jurisdictional Magistrate. On the very day he went to Kalya village and obtained a report from the doctor as per Ex. P.8. On 30-5-1997 he met Dr. Mohini and collected the articles and forwarded the same to FSL. He also recorded the statement of the relevant witnesses, collected the age certificate on 2-8-1997 of the victim girl as per Ex. P.7 and after collecting the wound certificate of the victim girl and the potential certificate of the appellant/accused, he filed charge sheet. Even in the cross-examination of this witness, except suggesting that there is delay in lodging the complaint; that he has not conducted panchanama as stated by him and he never went to the scene of occurrence; he did not draw panchanama for the seizure of the articles at the scene of occurrence; that the victim did not give frock for the purpose of seizure; that the appellant/accused is a married person and has got children and he has failed to examine the wife of the appellant/accused, nothing more is brought on record to discredit his evidence.
15. Heard the learned Counsel for the appellant/accused and the learned Addl. S.P.P. for the respondent State.
16. Learned Counsel for the appellant/accused contended that there is delay in filing the complaint. He further contended that panch witnesses have not been examined and as such the seizure is not proved and that the appellant/accused is falsely implicated because his daughters who study in the school where P.W. 2 studies were quarrelling with each other. On the other hand, the learned State Public Prosecutor submitted that there is direct evidence of the prosecutrix and the trial court has rightly convicted and sentenced the appellant/accused.
17. On re-appreciation of the material on record, the evidence of P.W. 1 s Dr. Mohini, who has examined the prosecutrix and found the rupture of hymen and traces of she having been subjected to rape; the evidence of P.W. 2, the victim girl who is of tender age of 8 years at the time of examining her and she giving minute details of the incident and the way in which she has been subjected to rape by the appellant/accused despite resistance by her. She has deposed before the Court that she had been to the Mosque at Nitte along with Nafeesa and Sabeena in the morning and was returning with them at about 12.30 in the after noon. She has specifically stated that Nafeesa and Sabeena were ahead of her by about 15 to 20 feet. When she was proceeding on the road leading from Nitte Mosque to Kallya, accused held her hands and dragged towards the forest area. She has deposed that she asked the accused to leave her hands. P.W.2 has stated, first she was asked to lay down on the ground. Later on she was asked not to raise hue and cry, lest she would be killed. She has specifically deposed that lot of grass had grown on the ground. Later on the accused removed the under garment i.e., Kacha worn by the victim and then he removed his undergarment. She has specifically deposed before the Court that accused had asked her to hold his penis in her hand. Later on the accused laid on her and penetrated his penis in to the portion through which she was passing urine. She has specifically stated that she underwent lot of pain when he did so and raised hue and cry. She has stated that accused gave her a five rupees note and asked her to come at about 7 a.m. on the next day morning. At such a tender age one cannot expect to know the difference between the sexual intercourse and a rape. She has narrated in a most natural manner about the traumatic incident that took place. She has further deposed that by the that time her mother, her uncle and her aunt came there and on seeing them coming towards him accused held her neck forcibly and threatened them that he would kill her if they come near him. Then the accused ran away. Shehas specifically deposed before the Court that as a result of the act done by the accused her thighs and the vaginal region had become dirty. Her mother took her to the house and arranged for a bath. She has deposed before the Court that she was having lot of fear even when she had slept. She has further deposed that even after the incident she would be frightened if she just thinks about the incident that took place the evidence of circumstantial witnesses i.e., the mother of the girl, Jubeda, P.W. 3, uncle of the victim P.W. 4 that when they went to the scene of occurrence immediately after the incident they saw accused/appellant lying on P.W. 2 and on he seeing P.W. 3 and P.W. 4 he holding threat to kill P.W. 2 if they were to go near him and then thereafter he running away from the scene of occurrence and the other witness P.W. 6 Nafeesa who was the class mate of the prosecutrix, P.W. 2, who has stated that the appellant/accused dragged P.W. 2 into the forest and she leading the police, mother and uncle of the prosecutrix to the place where the incident had occurred and the evidence of the father of the victim girl, after he coming to know about the incident in the evening and then thereafter he taking the prosecutrix to the police station on the next day and getting a complaint lodged; further the false claim of the appellant/accused that he has been falsely implicated because P.W. 2 and his children were quarrelling with each other. It is very unnatural that one would go to the extent of staking the honour of a minor girl because of petty quarrels between minor children. All these factors clearly go to show that the appellant/accused is guilty of an offence punishable under Section 376 IPC. There is no delay in lodging the complaint. The delay, if any, in the circumstance stated by P.W. 3 and P.W. 7, is of no consequence. Non-examination of the panch witness will not enure to the benefit of the appellant/accused. It is also established from the record that at the time of commission of the offence, the appellant/accused held threats to the victim girl P.W. 2 and put her in fear and he committed the offence of rape and therefore he is found guilty of the offence punishable under Section 506 IPC. I do not find any error in the order of conviction and sentence passed by the trial Court and accordingly I pass the following:
ORDER
The appeal is dismissed and the order dated 7-8-2002, passed by the Sessions Judge, Udupi District, Udupi, in S.C. No. 137/1997, is affirmed.