JUDGMENT
Surjit Singh, J.
1. State is aggrieved by the judgment of the Sessions Court, whereby respondent Pallu alias Avtar Singh has been acquitted of the charge of rape, punishable under Section 376(2)(f) of the Indian Penal Code.
2. Allegations on which the respondent was sent up for trial are as follows:
Prosecutrix, examined as P.W. 4 during trial, was aged less than 12 years and studying in 4th class in February, 1993. On 8th February, 1993, when she was returning home, after attending the school, and reached a place called Thappal, around 4 p.m. respondent Pallu, then aged about 17 years, all of a sudden, appeared from the nearby bushes where he was hiding. He physically lifted the prosecutrix, carried her into the bushes and committed rape on her. Prosecutrix reached home around 5 p.m. Her pyjama was stained with blood. She was crying. She told her mother that a boy by the name of Pallu resident of Thehar had committed rape on her. Around 6 p.m. her father, who works as a labourer returned home in the company of one Chamaru Ram. Incident was narrated to him both by the prosecutrix and her mother P.W. 5 Badamo Devi. The father of the prosecutrix then went to the Member of Block Samiti, P.W. 9 Subhash Chand, and informed him about the incident. Chamaru Ram, P.W. 9 Subhash Chand and the father of the prosecutrix then went to the place of occurrence. They saw the bushes crumpled at the site of the incident. They also noticed the pair of shoes of the prosecutrix lying on the spot which the father of the prosecutrix picked up and carried home.
3. Next day, the father of the prosecutrix accompanied by the prosecutrix left for Police Station, Jawali. On the way, ASI Dhian Chand (P.W. 17) of Police Post, Thakurdwara, met them. Incident was narrated to him. He recorded the statement of the prosecutrix Ex. PF, and sent the same to Police Station, Jawali, where the case was formally registered, vide FIR Ex. PF/1. Prosecutrix was got medically examined from P.W. 1 Dr. Kushla Pathania, who noticed some injuries on her lips and also on the back. On examination of the genitals of the prosecutrix, the doctor noticed reddish brown dry blood over the external genitalia, laceration 1/2 cm x to 1/2 cm over the fossa navicularis, tear of hymen with surrounding tissue red, swollen and painful. She found that the vagina admitted one finger and the admission was painful. She gave the opinion that sexual intercourse had been committed within 24 hours. Respondent was also got medically examined. He was examined by P.W. 3 Dr. Ranvlr Singh Jaswal, who gave the opinion that there was nothing suggesting that he (the respondent) was incapable of performing sexual intercourse. He noticed three abrasions on his legs and gave the opinion that the probable duration was 48 to 72 hours. The medical examination of the respondent was conducted on 10th February, 1993 or say on the third day of the occurrence.
4. Prosecution examined a number of witnesses to bring the charge home to the respondent. To seek the conviction of the respondent, the prosecution relied mainly upon the testimony of the prosecutrix, who was examined as P.W. 4, her mother P.W. 5 Badamo Devi, Member of Block Samiti P.W. 9 Subhash Chand and P.W. 1 Kushla Pathania, who conducted the medical examination of the prosecutrix.
5. Trial Court has acquitted the respondent holding that the prosecutrix, being a child, her statement cannot be relied upon without independent corroboration, no identification parade was arranged for the identification of the respondent by the prosecutrix, there is doubt about the identity of the respondent, as he is named as Pallu by the prosecutrix, whereas the respondent claims that he is not known by such name and that his name is Avtar Singh.
6. We have gone through the entire evidence and heard the learned Additional Advocate General and the learned Counsel representing the respondent.
7. We are pained to observe that the learned Sessions Judge has passed the order of acquittal on flimsy and imaginary grounds. An overall reading of the judgment suggests that the learned Sessions Judge, in fact found excuses to acquit the respondent, for the reasons best known to him.
8. Prosecutrix very categorically stated, while in the witness-box as P.W. 4, that she had been knowing the respondent for the last two-three years and that he was called by other children by the name of Pallu. Similarly, mother of the prsecutrix P.W. 5 Badamo Devi stated that she had been knowing the respondent since his childhood and that he was called Pallu by others. The mother of the prosecutrix further stated that when the prosecutrix returned home around 5 p.m. crying and bleeding from vagina, she told her that a boy named Pallu had committed rape on her. P.W. 9 Subhash Chand also very categorically stated that the respondent is known by the name of Pallu. Statement of P.W. 9 Subhash Chand to this effect was not even subjected to cross-examination and, therefore, there cannot be any hesitation in concluding that the respondent, whose real name is Avtar Singh, is also known by the alias name of Pallu and he is called by the people of the area only by this name. Thus, the view taken by the trial Court that there is doubt about the identity of the person, who committed the rape, is perverse, on the face of it.
9. Prosecutrix was aged a little less than 12 years, at the time of the occurrence. She is March, 1981 born, per Panchayat Certificate Ex. PG, proved by P.W. 6 Dharam Singh, and school certificate Ex. PH, proved by P.W. 8 Prabhat Singh, Headmaster of the School. Incident took place in 1993, when she was around 12 years of age. No doubt, a girl of 12 years will be called a child but the testimony of a child of such an age, particularly a female child, in a case of sexual offence, in which she herself happens to be the victim, cannot be discarded only for the reason that she is a child and can be easily influenced by the parents or other persons exercising influence over her to form a wrong impression and to make a false statement. This is especially so where it stands established that the sexual offence has been committed against her and the medico-legal evidence conclusively proves the commission of such offence, as is the case here. P.W. 1 Dr. Kushla Pathania, who medically examined the prosecutrix, has very categorically stated that the prosecutrix had been subjected to sexual intercourse in the recent past.
10. Judgment of Punjab and Haryana High Court Ram Singh v. The State 1973 CLR 482 relied upon by the trial Judge to discard the testimony of the prosecutrix, on the ground of her being a child, could not have been pressed into service, because that was a case of murder where a child of eight or nine years was examined as an eye-witness. In Supreme Court’s Judgment State of Assam v. Mafizuddin Ahmed 1983 Cri LJ 426, relied upon by the trial Court, a child of seven years was introduced as an eye-witness in a case of murder of his mother allegedly by his father. The evidence on record showed that he was under the influence of his mother’s parents, being in their custody after the registration of the case Against his father. It was for the aforesaid reasons that the Supreme Court did not believe the evidence of the child witness.
11. In the present case, as already noticed, the prosecutrix was aged about 12 years. She was mature enough to understand the crime committed against her and the purport of the facts which she testified in the Court, on oath.
In view of the categorical testimony of the prosecutrix, her mother P.W. 5 Badamo Devi and P.W. 9 Subhash Chand that the respondent was known by the name of Pallu by the villagers, as also the testimony of the prosecutrix that she had been knowing the respondent for the last two-three years, there was hardly any need for the conduct of identification parade during investigation.
12. Learned Counsel representing the respondent argued that it was P.W. 9 Subhash Chand who introduced the name of the present respondent as the offender. He drew our attention to the statement of P.W. 5 Badamo Devi, who in her cross-examination, admitted that the name of the respondent as Pallu son of Amar Singh was told to her by her husband, after he visited the spot. Learned Counsel argued that the husband of the witness visited the spot in the company of P.W. 9 Subhash Chand. It is true that P.W. 5 Badamo Devi, the mother of the prosecutrix, stated that name of the offender as Pallu son of Amar Singh was disclosed to her by her husband, after his visit to the spot but that does not mean that the name of the offender had not been disclosed to her by the prosecutrix herself. What the witness has stated is that her husband disclosed, after visit to the spot, the father’s name of the offender, meaning thereby that the name of the respondent had already been disclosed to the mother of the prosecutrix by the prosecutrix herself, but his father’s name was disclosed by her husband after visit to the spot. Therefore, it cannot be said that name of the respondent was introduced as offender at the instance of P.W. 9 Subhash Chand with whose father the father of the respondent is alleged to have had strained relations.
13. We have carefully gone through the testimony of the prosecutrix, who appeared as P.W. 4, her mother P.W. 5 Badamo Devi, Member of Block Samiti P.W. 9 Subhash Chand and the doctor, who conducted the medical examination of the prosecutrix, namely P.W. 1 Kushla Pathania. Prosecutrix very categorically stated that she had been raped by the respondent around 4 p.m. at a place called Thappal, when she was returning home from the school. She stated that alter rape she went home crying and told her mother that she had been ravished by the respondent. Her mother P.W. 5 Badamo Devi has fully corroborated her testimony. She stated that the prosecutrix told her that she had been raped by the respondent. She further stated that pyjama Ex. P. 1, which the prosecutrix was wearing, was smeared with blood. P.W. 9 Subhash Chand also corroborates the testimony of the prosecutrix. He has testified that he visited the spot the same evening around 6 and noticed some bushes at the site of the incident crumpled and also saw the pair of shoes of the prosecutrix lying on the spot. P.W. 1 Dr. Kushla Pathania testified that on examination she found that the prosecutrix had been subjected to recent sexual intercourse. In view of this evidence of the prosecutrix, the trial Court was not justified in ordering the acquittal of the respondent. The judgment of the trial Court is perverse, on the face of it, as already noticed hereinabove.
14. For the foregoing reasons, we allow the appeal, set aside the judgment of the trial Court acquitting the respondent and convict him of the offence of rape, punishable under Section 376(2)(f) of the Indian Penal Code. He is, however, acquitted of the charge of wrongful confinement under Section 342 ofthe Indian Penal Code.
15. Respondent be produced in person of 8th May, 2008, so that he is heard on the question of sentence. Non-bailable warrant of arrest be issued against him.