JUDGMENT
J.P. Mishra, J.
1. accused-appellant has preferred this appeal against the judgment of the Learned C.J.M.-cum-Assistnat Sessions Judge, Jharsuguda convicting him under Section 376(2)(f) of the IPC and directing him to undergo RI for ten yeas in Criminal Trial No. 90/8 of 2002/S.T. No. 246/17 of 2002.
2. On the date of occurrence, Le., 16.10.2001, at about 7 P.M., the parents (P.Ws. 7 & 10) who were in search of their minor daughter aged about five years for feeding her could hear her crying from their front door neighbour Gula Kissna’s house. They entered inside the house of Gula Kissan through the front door and found the accused-appellant-Khairu Kissan, son of Gula Kissan, committing rape on their minor daughter in their Bari side. The appellant took to his heels to whom the father of the victim could not reach in spite of his effort. They found the girl crying in pain. They also found her bleeding from her private part. They went to the Ward Member-Ashok Pradhan (P.W. 1) who wrote a report and the same was presented at the police station next morning. Investigation and trial commenced culminating in the result as indicated above.
3. Learned Court below concluded with the above finding on the basis of the evidence of the doctor (P.W. 6) corroborated by the evidence of the parents coupled with the surrounding circumstances keeping in mind the principle of res gestate.
4. Learned Counsel of the appellant has assailed the judgment of the Court below on the grounds of non-examination of the victim and inconclusive findings of the CE report (Ext. 11) and prays to set aside the judgment. On the other hand, the Learned Additional Standing Counsel while supporting the judgment of the Learned Court below submitted that the conviction can be very well based even without examination of the victim in case the other evidence found on record are cogent and trustworthy.
5. P.W. 9 (victim) was fount not suitable for examination as while under test the girl did not answer to question Nos. 1, 3 and 6 which are as follows:
Q. 1. Tume Aji Courtku Kahinki Asichha ?
Ans. Keeps mum.
Q. 3. Kana Hela Je Aija Tui Kachari Aschhu ?
Ans. Keeps mum.
Q. 6. Kaen Je Taku Chinhlu ?
Ans. Keeps mum.
The girl has answered the other questions and has also identified the accused stating him to be of village Barhamunda. The age (about 5 years) of the girl has remained unchallenged.
6. In my view, not answering to the aforesaid questions by a girl of such tender age is enough to send the message home. However, the Court below did not feel the girl to be fit enough to depose. Being the appellate authority, this Court has no chance to see the girl. Therefore, it will be improper to give a finding in regard to the fitness of a child witness to depose in the Court.
7. Learned Court below referred to the judgment of the Apex Court in State of Karnataka v. Mahabaleswar Gourya Naik and came to the conclusion that non-examination of the victim girl cannot absolve the accused from the liability. In the said case, the victim girl committed suicide and was not available to depose in the Court at the time of trial. Since the other evidence available on record were trustworthy, the Apex Court did not accept the plea of non-examination of the victim to be a ground for acquittal. In this case, though the minor girl was available, she was not found fit for examination as a prosecution witness. Learned Trial Court relying on the other evidence convicted and sentenced the accused-appellant.
8. The parents of the victim were the first persons to see the occurrence who are the natural witnesses. According to P.W. 7 father), they saw the appellant mounting on the girl in his Bari when they reached there following her cry. It has been brought out in cross-examination that while the girl was taking rice in the evening of the date of occurrence, the accused lifted the child as he was usually doing being a neighbour. Thereafter, the parents went inside their house and heard her crying only after a while. Subsequent thereto, they found the girl with the accused in his Bari. They also found that the girl was bleeding from her private part. The girl also communicated them that she was lifted by the accused who committed rape on her causing injury. The mother’s (P.W. 10) version is also corroborating the statement of P.W. 7. The Ward Member-Ashok Pradhan (P.W. 1) admitted to have scribed the FIR (Ext. 1) though did not support the case of prosecution fully. The evidence of P.Ws. 2 and 3 who are no other than unde and aunt of the victim girl have stated that the informant (father of the victim) had come with P.W. 4-Saheb Kissan to their house at village Pudhamal on a motorcycle and narrated them about the occurrence. They (P.Ws. 2 and 3) went to the village of the informant next morning and saw the injuries on the victim. While under cross-examination, the testimony of P.W. 2 is that she had no reason to ask any one of the village Barhamunda about the veracity of the case because she herself saw the injury on the private part of the victim girl. P.W. 4 has also testified that he had taken the informant to village Pudhamal in the night of the occurrence to the house of P.W. 3. P.W. 11 seized the underwear of the victim under Ext. 4 having blood stain along with the towel (marked as M.Os. I and II). From the testimony of P.W. 6-doctor it transpires that she found the girl crying due to pain on 17.10.2001 at about 5.30 P.M. while she examined her at Jharsuguda Hospital. She also found the girl having not developed any sexual character and was bleeding from orifice. The labia majora and labia minora were found with ecchymosis. Further, she found the hymnal margins to be bleeding on touch. She submitted her report (Ext. 3) mentioning the age of the injuries to be of about twenty-four hours. She has also answered to the Court’s question stating that she could not find any spermatozoa on microscopic examination which could have been washed away due to profuse bleeding from the vagina. This clinches the case of the prosecution since no parents can speak falsehood accusing some person especially adversely affecting the honour and chastity of their minor girl.
9. The submission of inconclusive CE report (Ext. 11) is of no help to the accused-appellant for the reason that human blood was found on the Chadi of the girl so also on the yellow check napkin, Le., towel.
10. Apart from the above contentions, no other contentions were raised by the Learned Counsel for the appellant and the contentions raised by the Learned Counsel for the appellant having failed for the aforesaid analysis, the appeal is dismissed.