JUDGMENT
Siba Prasad Rajkhowa, J.
1. This appeal is directed against the judgment and order dated 31-8-81 passed by the learned Sessions Judge, Howrah in Sessions Trial No. IV of July, 1981 convicting the accused-appellant Under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 8 years.
2. The prosecution case is that on 7-8-79 at about 8-30/9-30 in the morning while the prosecutrix Rekha Devi, a minor daughter of Bilat Jadav of Jhorhat within Sankril Police Station was playing at Kuatola near the ghar of accused Ramchit, he called her in and closed the door of the room immediately after she entered into it and forced her to lie down on the floor by pressing her and holding her hands and mouth and removing the pant on her wearing committed rape on her. This forciible rape caused much pain and bleeding injury in her private parts. She cried out and the accused released her on seeing much blood coming out of her private parts. Then the accused opened the door of his house and let her go. Being attracted by her cries, the mother, father and other persons arrived near the room of Ramchit. She narrated the incident to all of them. Ramchit confessed his guilt before all on being inquired by them and he begged to be excused.
3. On the same day at about 10-30 a.m. Smt. Rekha Devi, victim of the sexual assault was taken to Sankrail Police Station by her parents and neighbours. The accused was also brought to the police station and was handed over to the Police. The statement of Rekha Devi was reduced into writing by the S.I. of Police Sri S. N. Dutta who was attached to Sankrall Police Station on that day and the same has been treated as the First Information Report. The accused was put under arrest. The police seized the wearing apparel from Rekha Devi, namely, one pant and one frock bearing marks of blood. Thereafter police took the prosecutrix and the accused to the place of occurrence which was identified to the police by the prosecutrix. Police prepared a rough sketch map of the place with idex and also collected some earth mixed with blood from the floor of the room of the accused. Police recorded the statements of the post-occurrence witnesses and also the witnesses to the seizure list. On the same day police forwarded Rekha Devi to Howrah General Hospital for medical examination. She was kept there as an indoor patient for the period from 7-8-79 to 10-8-79 and on 11-8-79 she was brought from the hospital and handed over to her parents. On 16-8-79 she was again sent to Howrah General Hospital for her Ossification Test. The frock and pant seized from the wearing of Rekha Devi were sent to Forensic Science Laboratory. On 8-8-79 the accused was forwarded to Howrah General Hospital for examination. But on that day somehow the accused was not examined and so he was again sent for examination on 9-8-79.
4. Upon examination of the witnesses and upon receipt of various medical reports in respect of the prosecutrix and the accused and also the report from the Forensic Science Laboratory, police submitted charge-sheet against the accused Under Section 376 of the Indian Penal Code.
5. In the trial court the accused was charged Under Section 376 of the Indian Penal Code and the charge having been read over and explained to the accused, he pleaded not guilty. Prosecution examined 13 witnesses. They are P.W. 1 Kumari Rekha Devi, who is the prosecutrix, P.W. 2 Smt. Ramsundari Devi, mother of Rekha Devi, P.W. 3 Bilat Jadav, father of Rekha Devi, P.W. 4 Dr. Sunil Kr. Adhya, Gynaeocologyst attached to Howrah General Hospital at the relevant time, P.W. 5 Dr. Kanak Kanti Gupta, Medical Officer (Radiologist) attached to Howrah General Hospital at the relevant time, P.W. 6 Moharam Ali Ansari, a tenant under Gobinda Sardar, P.W. 7 Gobinda Sardar, owner of the house under whom the accused stayed as a tenant in a room at the relevant time, P.W. 8 Ram Bahadur Jha, a resident of Jhorhat, P.W. 9 Dr. Sourendra Nath Ganguli, who was the officiating District Medical Officer of Howrah General Hospital at the relevant time and who had examined, the accused, P.W. 10 Dr. Subrata Ghosh who was the Medical Officer, Howrah General Hospital at the relevant time and who had issued the discharge certificate in respect of Rekha Devi; P.W. 11 Abdul Rahaman a constable who brought Rekha Devi to Howrah General Hospital for examination on 16-8-79 and identified her to the doctor who examined her, P.W. 12 Amulya Karmakar, a constable who brought Rekha Devi on 7-8-79 to Howrah General Hospital and identified her to the doctor who examined her and P.W. 13 Sachindra Nath Dutt, Sub-Inspector of Police who is the Investigating Officer.
6. Defence declined to adduce any evidence. Defence case is one of total denial of the charge. The defence case emanating from the cross-examination of P.W. 2 and from the statement of the accused Under Section 313 of the Code of Criminal Procedure is that 3/4 days before the date of the alleged incident, the mother of Rekha was washing utensils at the well. The accused went there to bring water. Some water spilled out of his bucket. At this the mother of Rekha abused him saying, “You are a lower caste chamar, you have impured my utensils” and both the mother and the daughter threatened him that they would teach him a lesson. On the date of occurrence while he was preparing food, Bilat Jadav (P.W. 3) came to his ghar along with 4/5 persons who were his own men and brought him to the staff library (owned by the Jute Mill in which they were workers) and assaulted him and thereafter took him to the police station and handed him over to the police falsely implicating him in this case.
7. From the evidence on record the learned trial Judge found the accused guilty Under Section 376, IPC and upon hearing him on the point of sentence, sentenced him to undergo rigorous imprisonment for 8 years.
8. Hence the appeal.
9. Learned counsel for the appellant has submitted that the prosecutrix did not make any allegation of rape on her before the doctors who examined her and that she also did not disclose the name of the person who had committed rape on her before the doctors. Moreover, P.W. 4 Dr. S. K. Adhya who examined the prosecutrix on 7-8-79 had found her gait normal. As such, according to the learned counsel for the appellant, the prosecution case of rape Upon the prosecutrix is not true. Learned counsel has also submitted that the statement of the prosecutrix was not recorded as per provision of Section 164 of the Code of Criminal Procedure. As such her subsequent evidence in court may not be relied upon as disclosing the true facts. The accused was examined by Dr. Sourendra Nath Ganguli (P.W. 9) not on the date of occurrence but on 9-8-79 i.e. 2 days after the occurrence. So according to the learned counsel for the appellant this delay in medically examining the accused has caused prejudice to him, in that he was deprived of the defence that he had no sexual intercourse with the victim. In the FIR the prosecutrix has mentioned her mother, father and other persons who arrived near the room of the accused after the commission of the crime. From this statement the learned counsel has contended that only the mother and the father of the prosecutrix are the witnesses and the prosecutrix had kept the names of other persons in darkness and so the learned counsel has urged before us to discard the evidence of other prosecution witnesses who could not be said as having been present at the place and time of occurrence. According to the learned counsel the prosecutrix and her father and mother have falsely implicated the accused out of previous enmity. The learned counsel has further submitted that, in absence of any independent witness, it will-be unsafe to rely upon the evidence of the prosecutrix and her father and mother. His further contention is that the prosecution has withheld 2 material witnesses. They are the 2 playmates of the prosecutrix who were playing together at the time of occurrence. According to the learned counsel prosecution has withheld 2 other material witnesses i.e. Smt. Kamala and Sri Gaya Giri who are the close neighbours of the accused.
10. We are going to discuss the evidence on record keeping in mind the submissions made by the learned counsel for the appellant. First of all we take up the medical evidence on record. On 16-8-79 P.W. 5 was attached to Howrah General Hospital as medical officer. On that day Rekha Devi was produced before him for Ossification Test in connection with Sankrail Police Station Case No. 7 dt. 7-8-79 Under Section 376 of the Indian Penal Code. She was brought and identified by P.W. 11. On the basis of the radiological findings P.W. 5 has determined the age of the prosecutrix to be above 9 years but below 10 years on the date of examination. We accept this finding of P.W. 5 as to the age of the prosecutrix which has not been even challenged before us as correct and hold that the age of the prosecutrix was in between 9 and 10 years on 7-8-79.
11. P.W. 4 is the first doctor in point of time who examined the prosecutrix on 7-8-79 at 3 p.m. at Howrah General Hospital in presence of staff Nurse Minati Ghosh with the consent of the party and he found as follows:
Identification Mark -- Scar mark on the left leg.
General Configuration -- Height 4'-10", Weight 34 Kg.
Teeth : Upper & Lower -- 14 x 14
Breast -- Not developed
Axillary Hair -- Nil
Gait -- Normal
Voice -- Childish
Local Examination
Labia -- Infantile. Vaginal Swab and smear taken and sent
for forensic examination to the department.
Fourchette -- Torn.
Hymen
Vaginal Walls -- Lacerated in the lower 1/3rd. No foreign element
was detected.
Injuries as above
Any other important
information -- Scratch mark on the back of the patient.
Opinion -- It is a case of rape
Further Advice -- Patient was referred to the Department of
Rediology for test of occification of centres for
confirmation of age.
12. From the aforesaid date P.W. 4 has given a positive finding that it is a case of forcible rape.
13. From the evidence of P.W. 10 we find that the prosecutrix was admitted in the Howrah General Hospital on 7-8-79 as an indoor patient and discharged on 11-8-79. Vide discharge certificate Ext. 1.
14. P.W. 4 has given his opinion that after forcible rape, the girl raped would have limping gait. In this case P.W. 4 found the gait of the prosecutrix normal. But this finding itself cannot demolish the prosecution case. His (P.W. 4) own finding is that it is a clear case of rape.
15. The blood stained frock and pant of the prosecutrix were sent for analysis to the Forensic Science Laboratory and they confirmed that blood was detected on the samples sent for analysis as per report Ext. 6.
16. The medical evidence read with Ex. 6 leads to the irresistible conclusion that the prosecutrix was raped on 7-8-79.
17. Now let us see whether the accused had committed rape on the prosecutrix. It is true, as submitted by the learned counsel for the appellant, that the prosecutrix had not disclosed the name of the culprit before any one of the doctors. But that does not in any discredit the evidence of the prosecutrix or for that matter affect the prosecution case as a whole. We should not forget that the prosecutrix was a tender aged girl at the time of occurrence and not conversant with the legal niceties. There is no question of disclosing the name of the accused to P.W. 5 who merely held ossification test 9 days after occurrence and had nothing to do with the history of the case. However, soon after the occurrence the prosecutrix came to police station along with her parents and she herself lodged the FIR (Ext. 2) with the police in which she has given the name of the accused as the culprit and she has corroborated this fact in her evidence. Non-disclosure of the name of the accused to the doctor who examined her on 7-8-79 at 3 p.m. is of no consequence in view of her earlier disclosure of the name of the accused in the FIR and disclosure of the name of the accused immediately after the occurrence to her parents and neighbours. In fact, the accused was almost caught red-handed. In the court below defence half-heartedly tried to take the plea of alibi by suggesting to the prosecutrix (P.W. 1) that the accused was performing his duty in the ‘C’ shift in the Jute mill on the date of the incident. Her reply was that she did not know when the accused attended his duty on that day. Defence by cross-examining P.W. 3 (father of the prosecutrix) has brought out a clarification regarding ‘C shift duty. It means night duty from 10 p.m. to 6 a.m. P.W. 3 has admitted in his cross-examination that the accused had done his ‘C shift duty on the previous day of the incident We have seen from the evidence that the occurence took place at about 8-30 a.m. As such even if the accused had attended his ‘C shift duty in the previous night then he will be very much present after 6 in the next morning. Therefore, this plea of alibi is not at all sustainable and the learned counsel for the appellant has wisely submitted that he would not press the point of alibi. P.W. 1 has given a graphic picture as to how she was raped by the accused. The learned counsel’s submission that the neighbours of the accused namely Smt. Kamala and Sri Gaya Giri and her 2 playmates were not examined to lend support to the prosecution case is answered to the satisfaction of the court by the prosecutrix herself. In her cross-examination she has stated that at the time of incident neither Kamala nor Gaya was present and that the incident took place after her playmates had already left the place. Moreover, from the cross-examination of P.W. 2 (mother of the prosecutrix) we find that the 2 playmates of her daughter were aged 5/6 years at the time of occurence. One was called Buri and the other was called Kali. We do not think non-examination of these 2 children has caused any prejudice to the defence. As deposed by P.W. 1 she was playing with them only till before the incident. So it is clear that those 2 children had not seen the occurrence.. P.W. 2 has stated that being attracted by the cries of her daughter she went to the ghar (room) of the accused and found blood marks in the pant of her daughter. On enquiry, her daughter told her that the accused called her into the ghar and forcibly committed rape on her. P.W. 3 has fully corroborated the evidence of P.W. 2 regarding the incident and reporting of the incident to them by their daughter. P.W. 6 has also lent support to the evidence of P.W. 2 and P.W. 3. P.W. 8 has deposed that Rekha (i.e. prosecutrix) told before him that the accused had committed rape on her. In this regard defence drew the attention of the investigating officer (P.W. 13). His answer as recorded reads as follows : “P.W. 8 Ram Bahadur Jha did not state to me that he heard the incident of this case from the mother of Rekha”. We fail to understand what the contradiction is. P.W. 8 has stated that Rekha herself told him about the incident. The learned counsel has pounced upon a statement of P.W. 2 in her cross-examination and submitted that there was some attempt on the part of the prosecution to hush up certain evidence so that the accused can be roped in. The statement of the P.W. 2 is that at the time of the incident Kamala was cleaning her utensils near the patkua. Whereas P. W. 1 has stated that at the time of the incident none was present there. In our opinion this cannot be vital contradiction affecting the evidence of the prosecutrix which is straightforward and receiving corroboration from medical evidence and evidence of her parents and other neighbours. It may be that when P.W. 1 was called into the ghar of the accused at that time nobody was near about patkua but when P.W. 2 came out of her ghar hearing the cries of her daughter, Kamala may have come there to claim her utensils and so P.W. 2 saw Kamala cleaning her utensils. Anyway we cannot read too much in such minor discrepancies. In this connection it is worth-mentioning as to what the Supreme Court has stated in 1973 SCC (Cri) 1033 : (1973 Cri LJ 1783), Shivaji Sahabrao v. State of Maharashtra, “The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lathergic ways of our village. When scanning the evidence of the various witnesses the court has to inform itself that variances on the fringes, discrepancies in details, contradiction in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to the probabilities in the substantial fabric of testimony delivered”. There is no earthly reason to disbelieve the evidence of the P.Ws as discussed above.
18. P.W. 7 is the owner of the house which was divided into several rooms and each room was let out to one tenant. At the relevant time both P.W. 3 and the accused were tenants under him who were occupying one room each in that house. He has inter alia deposed that he knows Rekha the daughter of P.W. 2 his tenant and also the accused and about 2 years ago (from the date of his deposition on 25-8-81), he found Rekha crying and her mother coming out of her ghar making enquiry to her daughter as to what had happened to her and he was present at that time. He could not hear what she said to her mother. But Rekha’s mother told him that the accused Ramchit had committed rape on Rekha. Hearing this he enquired of the accused whether he had done that. At first the accused pleaded ignorance and innocence. Subsequently he admitted that he had raped Rekha when others were saying that he had done it. He found blood marks on the pant of Rekha. This witness was declared hostile to the prosecution and he was cross-examined by the learned Public Prosecutor as to his statements made before the investigating officer. We have gone through the supposed contradiction of this witness in the evidence of the investigating officer (P.W. 13). Prosecution got enough evidence from P.W. 7 in corroboration of the evidence of other witnesses. In our opinion he was unnecessarily declared hostile to the prosecution. Anyway, it is now the established principle that the evidence of a prosecution witness who has been declared hostile should not be thrown overboard on the ground that his evidence cannot be relied upon. That much of the evidence of a hostile witness can be relied upon by the prosecution if that statement is in conformity with other evidence. Similarly that much of the evidence may be used by the defence if at all it comes to its aid. From the cross-examination of P.W. 7 by defence we find one fact that goes in favour of the prosecution and another fact that goes in favour of defence. He has stated that 3/4 weeks before the date of the incident, the wife and children of the accused had left for their native place. From this fact a natural presumption would arise that the accused, in absence of his wife’s company, may feel depraved and he might have felt the urge to have sexual intercourse with the prosecutrix. This witness has admitted in cross-examination that 3/4 days before the incident there was a quarrel between Rekha’s mother and the accused at the time of overdrawing of water from the patkua (well). He settled the dispute between them. At the time of quarrel Rekha’s mother told the accused that she would teach him a lesson. So according to the learned counsel for the appellant, P.W. 2 and P.W. 3 in collusion with each other falsely implicated the accused in this heinous crime by making their daughter (prosecutrix) only a tool in their hands in their grand design to teach a lesson to the accused. Previous enmity or strained relation always acts like a double edged dagger which cuts both ways and the offence may be committed by somebody due to previous enmity. Similarly a man may be falsely implicated in the commission of a Crime because of previous enmity. So in a case where previous enmity or illfeeling between the members of the prosecution and the accused is shown to exist, it should be the duty of the court to scan the evidence on record with great circumspection. We have given our anxious thought to the prosecution evidence as a whole and in our considered opinion there could not be any false implication of the accused due to ill-feeling between the parties. It is quite improbable that P.Ws. 2 and 3 would falsely implicate the accused in such a crime affecting the honour and future of the girl and a social stigma for such a trifling quarrel The facts that the victim girl was seen immediately after occurrence bleeding from her private parts and the presence of the accused in his room alone rule out the possibility of rape by an unknown person. In answer to a suggestion she has stated that it is not a fact that the accused raped her immediately after she got up from her sleep. We fail to understand how such a suicidal suggestion could be put to her. Perhaps the defence wanted to suggest that the prosecutrix would not be able to recognise the culprit if she were ravished soon after she awoke from her sleep in the morning. Mere suggestion is no proof. Even then we are not impressed at all by this suggestion.
19. It is true that the statement of the prosecutrix was not recorded as per provision of Section 164 of the Cr. P.C. Law does not enjoins that a statement of a witness must be recorded Under Section 164, Cr. P.C. The general purpose of recording such a statement of a witness is to fix him to it when it is feared that he may resile afterwards or may be tampered with. There is another purpose for recording the statement Under Section 164. Statements made soon after the incident are far more trustworthy than later denials or embelishments. Such statements are admissible in evidence and presumption of genuineness Under Section 80 of the Evidence Act attaches to such statements. However, a statement recorded Under Section 164 can never be used as substantive evidence of truth of the facts but it may be used for the purpose of contradiction or eorroboration of the witness who made it, as per provisions of Section 145 and Section 157 of the Evidence Act. In this case, as the statement of the prosecutrix was not recorded Under Section 164, the question of contradiction or corroboration does not arise. Even without a statement Under Section 164 we have seen that the evidence of the prosecutrix is free from any embellishment and she has not deviated from her statement made before the investigating officer soon after the occurrence which was treated as the FIR (Ext. 2). As such we hold that the absence of any statement Under Section 164 has not caused any prejudice to the accused and has not caused any miscarriage of justice.
20. On 9-8-79 accused Ramchit Rajbhar was brought before P.W. 9 at Howrah General Hospital for examination in connection with Sankrail Police Station Case No. 7 dt. 7-8-79. The accused was identified by Constable No. 1287 Amulya Karmakar and
Constable No. 1233 Ranjit Kr. Sur. Constable 1287 was examined as P.W. 12. It is found that his surname is Karmakar and not Sarkar. So his surname was wrongly mentioned as Sarkar by P.W. 9. On examination he found : Height 158 cm., Weight 55 Kgs. Teeth: Upper and Lower all present, Axillary Hairs — Plus, Gait — Normal, Voice — Male Type, Penis — normal, Smegma — Plus, Frenum — in tact, size 4 1/2″ x 3 1/2″ can erect. Urethral swab and Smear could not be taken. Any injury or foreign body could not be detected.
21. Ramchit was found potent on examination and was capable of sexual intercourse.
22. As P.W. 9 found presence of smegma, defence suggested to him that there was no copulation. But P.W. 9 did not agree to this suggestion. P.W. 4 was already questioned by defence on the point of presence of smegma and P.W. 4 opined that it may be present even after sexual intercourse. P.W. 9 did not find any injury on the male organ of the accused but this absence of injury by itself is not sufficient to hold that the accused had no sexual intercourse with the prosecutrix. Defence elicited by cross-examining P.W. 4 the probable cause of absence of injury on the male organ of the accused. He has stated that if a male person accustomed to sexual intercourse commits rape on a female person, he is not expected to have any injury on his male organ because the private parts of the famale are soft. The accused was aged about 40 years at the time of- the occurrence and he was married with children. Under- the circumstances we find that P.W. 4 has given a very considerate opinion as to why no injury was detected on the male organ of the accused at the time of his examination by P.W. 9.
23. The evidence thus discussed leads to the only conclusion that the prosecutrix who-was a minor girl aged in between 9/10 years at the time of occurrence was raped by the accused and that there was no false implication of the accused in this abominable crime against a minor. As such he was rightly convicted and sentenced Under Section 376 of the Indian Penal Code.
24. The appeal is dismissed and the order of conviction and sentence is upheld.
25. The accused-appellant is directed to surrender to his bail bonds forthwith and serve out the sentence.
Jyotirindra Nath Hore, J.
26. I agree.