- (1.) S. B. Criminal Appeal No. 593 of 1976 and S. B. Criminal Jail Appeal No. 707 of 1976, filed by Shyama arise out of one and the same judgment of the learned Additional Sessions Judge No. 2, Jodhpur, dated 29th July, 1976, by which the appellant was convicted undar sec. 376, I. P. C. and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/-, and in default of payment of fine to further suffer rigorous imprisonment for a period of three months.
(2.) THE incident that led to the arrest and prosecution of the appellant may be briefly stated as follows: Mst. Dhapuri wife of Ratna Bhil resident of Kalyanpura, District Barmer, was residing in Mohalla Barjion-ki-Bagichi, Masuria at Jodhpur, on 12th March, 1976. Her daughter Kamla, aged about 12 years, also lived with her in the same house. Shayama appellant and his wife Mst. Balki Bhil too were living in the vicinity of the house of Mst. Dhapuri. On 12th March, 1976, at about 4 p. m. the appellant's wife Mst. Balki called the minor girt of Dhapuri to her house. Shayama appellant was present in the house at that time. He caught hold of Mst. Kamla threw her on the ground and then committed rape on her after pressing her mouth with his hand. As a result of forcible sexual intercourse, the private parts of Mst. Kamla bled profusely. THE appellant's wife tied a towel to the private parts of the girl and left her at har maternal uncle Basti Ram's house. Mst. Kamla was crying due to pain in her private parts. Basti Ram's wife made necessary inquiries from the girl who related to the former that she had been ravished by the appellant. Kamla's mother had gone to the market. So Basti Ram's wife took the girl inside her house and waited for the arrival of her mother Dhapuri. After some time Kamal's mother returned from the market and came to know about the incident from Basti Ram's wife. To her also Kamla disclosed that she was subjected to rape by the appellant in a room of his house. Mst. Dhapuri, thereupon, rushed to lodge a report of the occurrence to the police at police station, Sardarpura. Ramesh Chandra, S. H. O. police station, Sardarpura, received the written report presented to him by Mst. Dhapuri on 12th March, 1976, at 5-30 p. m. He registered a case under sec. 376, I. P. C. on the basis of the said report and disputed Bahadur Singh, S. I. to make an investigation into the matter. Bahadur Singh arrested the appellant on 13th March, 1976. At the time of the arrest the appellants was wearing an underwear which was suspected to have stains of blood on them. Bahadur Singh took the underwear in his possession and sealed it properly in the presence of Motbirs. He sent the girl to the hospital for medical examination and took one blouse, one Ghaghra, one Kachha and a towel into his possession as there were stains of blood and semen and blood on them. THEse clothes were produced before him by Kamla's father. THE Doctor examined the private parts of the girl and found a laceration 1 cm. & 0. 2 cm. of the labia minora at about 3 O'clock position. THEre was a laceration of the vaginal wall at 5 O'clock position near the vaginal orifice which was bleeding. Hymen showed recent tears and its edges were bleeding. THE vaginal canal was one finger tight. On the basis of the above data the Doctor opined that there was evidence of recent penetration of some hard object which could be male penis also. THE Doctor advised X-ray examination of her elbow and wrist for determination of her age. THE X ray examination was conducted in his presence and under his supervision. THE result of the X-ray examination was as follows: (1) Epiphysis of the medial eplcondyle of humorous has partially fused; (2) Epiphysis of the head of radius has appeared but not fused; (3) Epiphysis of the elacranon process of ulna has fused; (4) Epiphysis of the distal end of radius and ulna have appeared but not fused On the basis of the clinical data and X-ray finding, the Medical Officer was of the opinion that the age of Kamla was about 14 to 15 years. On 13th March, 1976. the Doctor examined the appellant also with a view to ascertaining whether the latter was potent and capable of having sexual intercourse. Upon X-ray examination the Doctor found that the penis and scrotum of the appellant were well formed and there was nothing to show that he was not capable of having sexual intercourse. THE Doctor noticed one abrasion 0. 2 cm. x 0. 2 cm. on the frenulum of of the pents, also, which led him to opine that the appellant had recent sexual intercourse. THE Station House Officer sent the blouse, Ghaghra, Kachha and towel of the girl and the underwear of the appellant to the States Forensic Science Laboratory Jaipur, in a sealed condition for analysis and report. THE Director of the said laboratory, upon analysis, detected blood on blouse, Ghaghra, Kachha and towel. THE investigating agency collected other necessary evidence in the case against the appellant and upon completion of investigation filed a challan against the appellant in the court of the Additional Munsiff and Judicial Magistrate No 1, Jodhpur, under sec. 376, I. P. C. THE learned Magistrate committed the appellant to the court of the Sessions Judge, Jodhpur, for trial for offence of rape. THE Sessions Judge transferred the case to the court of the Additional Sessions Judge No. 2, Jodhpur, for trial according to law. THE learned Additional Sessions Judge tried the appellant for the offence of rape and found him guilty thereof and awarded the sentence of imprisonment and fine as stated above. Aggrieved by his conviction the appellant has preferred these two appeals, one from the jail and another through his counsel Mr. K. C. Gaur. As both the appeals filed by him are directed against one and the same judgment, they are disposed of together by one judgment. I have thoroughly gone through the record and heard Mr. K. C Gaur for the appellant and Mr. M. C. Bhati, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellant that before the actual exami-nation of the prosecutrix commenced, the trial court ought to have tested her capacity to understand and give rational answers to the questions put to her with a view to ascertaining whether she was capable of understanding the difference between the truth and falsehood. According to the learned counsel, the trial court did not hold a preliminary inquiry as envisaged by S. 118 of the Evidence Act and so her evidence is liable to rejection on this score. The above contention has no force, because, the trial Judge has recorded his finding as to the com-petency of Mst. Kamla in the following words: " She understands the questions and the sanctity of oath. " It is no doubt true that the trial Judge had not recorded the questions put to her for testing her competency to give evidence but omission to record the questions as a mere irregularity which does not vitiate the trial, especially when the trial court had satisfied itself that Mst. Kamla had capacity to understand the nature of the questions and the sanctity of oath. Apart from this, the age of Mst Kamla was about 14 years at the time when her examination commenced in the trial court. She was not a child of such a tender age group as ordinarily could not be expected to have sufficient understanding and intelligence to justify recep-tion of her evidence. Consequently, I do not feel inclined to brush aside the evidence of Mst. Kamla merely because of her tender age and the omission of the trial Judge to record the questions put to her to test her capacity to understand and to give rational answers to the questions. However, I may observe that it is desirable that the trial court should give reasons for its opinion whether or not a witness of tender age is capable of understanding the duty of speaking the truth and whether or not she is competent to give evidence in the case. The next contention put forward by Mr. K. C. Gaur for the appellant is that Mst. Kamla denied in her examination in chief in the trial court that Shayama appellant was the person who had called her to his house and then committed rape on her. She, however, was declared hostile and cross-examined by the Public Prosecutor with the permission of the court. In her cross examination she contradicted herself completely and told everything about the incident implicating the appellant in the commission of the crime of rape committed on her. According to the learned counsel for the appellant, Mst Kamla by making contradictory statements stood in a situation which made her for all purposes an untruthful witness. It was further argued that in view of her contradictory statements on material points, no part of her evidence can be legally accepted and acted upon in convicting the appellant for the crime of rape. In support of his above proposition, Mr. K. C. Gaur, counsel for the appellant, referred me to the following authorities of the Supreme Court Jagir Singh vs. The State (1) and Bhagwan Singh vs. The State of Haryana (2 ). Mr. M. C. Bhati, appearing on behalf of the State, on the other hand urged that the girl was not unwilling to speak the truth, but as she could not properly understand the questions put to her in the examination in chief she failed to give the correct version and said nothing about the occurrence about which she was expected to speak. She, however, said all about the incident in her cross examination by Public Prosecutor and further gave an explanation for the contradictions appearing between her examination-in-chief and cross-exami-nation by the public prosecutor. The explanation given by her and relied upon by Mr. M. C. Bhati was that in her examination-in-chief she denied rape having been committed on her by the appellant because she was labouring under an impression that she was asked whether the appellant had committed rape on her prior 1o this incident also. According to Mr. Bhati, the above explanation given by Mst. Kamla appears to be convincing, because when cross-examined by the Public Prosecutor, she stated the true facts without the least reluctance and because there is reliable evidence on the record that she had narrated these very facts, which she had disclosed in her cross-examination, to her maternal aunt Mst. Pepi soon after the occurrence. Mr. M. C. Bhati further argued that the evidence of Mst. Kamla does not become worthless and unreliable merely because permission was granted by the trial Judge to the Public Prosector to cross-examine her, and it has to be considered as a whole with a view to finding out whether it is of any worth and what weight should be attached to the same. I have given my anxious consideration to the rival contentions. There is no dispute that the trial court allowed the prosecutrix to be cross-examined as a hostile witness under S. 154 of the Evidence Act, but this fact does not necessarily imply that she must be considered to be a worthless and unreliable witness In dealing with the evidence of such a witness, the Court has to be cautious. It must read the evidence as a whole, weigh it carefully and decide which part of it is true and worthy of credence and which is not. In weighing the evidence the court should take into account whether or not there are contradictions in it on material points and, if there are any, whether they have been satisfactorily explained away or not by the witness and whether any part of his or her evidence is true and carries conviction to a prudent mind. If, upon assessing the evidence in the manner stated above, the Court comes to a conclusion that any part of the evidence of such a witness is true and trust-worthy the court may act upon it. The testimony of hostile witness has to be tested, weighed and considered in the same manner in which the evidence of any other witness in the case. I am supported in my above view by a recent pronouncement of the Supreme Court in Bhagwan Singh vs. State of Punjab (supra) wherein their Lordships were pleased to make the following observations on the testimony of a hostile witness: " We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to crossexamine the witness under section) 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to crossexamine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. " In another case Sat Paul vs. Delhi Administration (3), the Supreme Court after an elaborate discussion summed-up the law on this point as follows: " From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether, It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it If in a given case, the whole of the testimony of the witness is impugned,and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in to to. It was in the context of such a case, where, as a result of the cross-examination by the Public Prosecutor, the prosecution witness concerned stood discredited altogether, that this Court in Jagir Singh vs. State, (AIR 1975 SC 1400) (supra), with the aforesaid rule of caution which is not to be treated as a rule of law in mind, said that the evidence of such a witness is to be rejected enbloc. " In the light of the above principles or guidelines laid down by the Supreme Court for appreciation of the evidence given by a witness, who was dealt with under sec. 14 of the Evidence Act, the evidence of Kamla proseeut-rix cannot be brushed aside in toto as it does not stand totally discredited. After going through her evidence and considering it as a whole, I have come to the, conclusion that there was cross examination by the Public Prosecutor not for the purpose of discrediting her but for eliciting true facts from her, which she could, not state, on account of having not properly understood the questions put to her in the examination-in-chief. When she was cross examined with the leave of the Court by the Public Prosecutor, she disclosed all the facts within her knowledge without the least hesitation and gave an explanation for the erroneous statement made in the examination-in chief. The explanation given by her was that she was labouring under an honest impression that she was asked to fell whether the appellant had called her to his house and committed rape on her prior to the occurrence. Her above explanation was believed and accepted by trial court and, I think, it was rightly held to be convincing, especially when there was no cross-examination on it from the side of the appellant. The reason for apparent contradictions between her examination-in-chief and in cross-examination, therefore, appears to be that she misunderstood the questions put to her in her examination in-chief and despite her best intention to speak the truth, said nothing about the occurrence presumably under an impression that she was asked to tell whether she had been called by the appellant to his house and raped therein prior to the incident in question. Hence, out right rejection of her testimony on the sole ground that it is the evidence of a hostile witness is not justified in this case as the part of her statement contained in her cross-examination by the Public Prosecutor appears to be true and reliable after close and careful scrutiny. Besides, the story disclosed by her in her cross examination by the Public Prosecutor has not been assailed in cross-examination from the side of the appellant. The learned counsel who represented the appellant in the trial court put a few questions to her, the answers of which did not adversely affect the credibility of her evidence. The answers given by her in her cross-examination are quoted below in extenso to show that no effort was made from the side of the appellant to cross-examine her on material points of her statement, which she gave in her cross-examination by the Public Prosecutor: ';kek us esjs lkfk igys [kksvk dke ugha fd;k Fkk] vhkh fd;k gsa Hkkbz cfgu dk fj'rk jgk gsa tks ckr esaus ij crkbz gs og lc lp gsa esa vc mldks Hkkbz ugha le> rh D;ksafd mlus [kksvk dke fd;k gsa Apart from this, the version given out by Kamla in her cross-examination by the Public Prosecutor finds corroboration from the evidence of her maternal-aunt Pepi PW. 2 Pepi stated in her statement that at about 4 p. m. Kamla came to her house weeping and having stains of blood on her Kachha, Ghaghra and towel tied to her waist. Pepi further stated that Kamla disclosed to her that Shyama appellant caught hold of her, took her inside his room, pressed her mouth with his hand, turned her Ghaghra upwards, untied his pantaloon and committed sexual intercourse upon her. Pepi claimed to have seen the private parts of the prosecutrix. She saw that her private parts were torn and injured. Pepi further stated that after a short-while Shayama appellant and his wife came to her house and beggod her to be excussed as they had committed wrong. They also requested Pepi to hush-up the matter upon taking any sum whatsoever.
(3.) THE evidence of Mst. Pepi P. W. 2 that Kamla disclosed to her soon-after the occurrence that she had been raped by the appellant in his house does not suffer from any infirmity and there is no reason why it should not be relied upon, especially when nothing has been elicited from cross examination, which may tend to destory the value of her evidence or to impeach her credit. It is proved by her evidence that the statement was made by Kamla soon after she came out of the house of the appellant having her Kachha, Ghaghra and the towel tied to her waist, stained with blood and her private parts badly injured. THEre is no material on the record to show or suggest that there was any possibility of the prosecutrix being tutored by any outside agency after taking place of the occurrence and the making of the statement by her to Mst. Pepi. Hence the prosecution has succeeded in proving that the former statement made by Kamla before her maternal aunt Pepi shortly after the rape corroborates the statement made by her in cross-examination by the Public Prosecutor in the trial court. Such a former statement made by Kamla soon after the event alleging that she was raped by the appellant in his house is admissible under sec 157 of the Evidence Act for the purpose of corroboration of her subsequent evidence in the court with regard to the same fact and it was rightly used by the trial court to corroborate Kamla's testimony in court. THEre is nothing on the record to show that Kamla made a false statement before Pepi PW. 2 out of some ulter for motive and later adhered to it or affirmed the same falsehood in the trial court. There were other circumstances also which provided further corroboration of Kamla's statement in the trial court. Medical evidence disclosed presence of abrasion 0. 2 cm. x 0. 2 cm. on the pendulum of penis of the appellant, on 13-3-1976, i. e. on the next day of the occurrence. There is no satisfactory explanation from the side of the appellant for the presence of this injury on his penis. The appellant set up a plea of alibi in the trial court and denied the correctness of the report of his medical examination on 13-3-1976. The presence of an injury on his penis was a corroborative piece of evidence relating to his participation in the crime of rape in the absence of any satisfactory explanation from him to account for the injury. The medical examination of the girl also revealed laceration of the labia minora at about 3 O'clock position 1 cm. x 0. 2 cm. and laceration of her Vaginal wall at 5 O'clock position near the vaginal orifice. Her hymen had recent tears, and the edges were bleeding. The medical officer definitely opined that there was evidence of recent penetration of some hard object which could be male penis. There is no reason to disbelieve the medical evidence especially when it has not been shaken in cross-examination. The existence of these injuries to the private parts of the girl justified the inference that she had been taped. Hence, there is no room for doubt that the medical evidence corroborated the testimony of the prosecutrix in the matter of commission of the offence of rape. Mst. Kamla was medically examined as to her age also. X-ray examination of her elbow and wrist clearly revealed that epiphysis of the medical eplcondyle of humerus had partially fused, epiphysis of the head of radius had appeared but not fused, epiphysis of the elacranon process of ulna had fused and epiphysis of the distal end of radius and ulna bone appeared but not fused. On the basis of the ossification test the Doctor opined that the age of Kamla was about 14 to 15 years at the time of her examination The prosecution has established by medical evidence that Kamla was a girl of tender years at the time she had been subjected to rape. ;