- (1.) THIS appeal is directed u/s. 374 CR. PC. against the judgment and order dt. 6. 5. 97 made by the Learned Spl. Judge (Women Atrocities and Dowry Prohibition Cases), Jaipur in Sessions case No. 36/97. By his impugned judgment and order the learned Trial Judge held the appellant guilty of the offences u/ss. 376 (2) (f) IPC, convicted him thereunder and sentenced him to R. I. for 10 years and fine of Rs. 200/-or in case of default in making payment of fine to undergo further R. I. for one month.
(2.) THE facts relevant and sufficient to dispose of the present appeal are these : PW 2 Ghanshyam alongwith their minor daughter PW 3 Anita aged about 4 years had gone to participate in the marriage function arranged at the house of the elder sister of Smt. Ganga in Mohan Lal Sukhadiya Kachi Basti, Jaipur. It is alleged that the present appellant had also gone there in the said marriage party. THE prosecution case is that at about 11. 00 p. m. when the parents of Anita and other persons were busy in the marriage function, the appellant took-away Anita behind the bushes on some pretext and committed rape upon her. It is further alleged that after having given the threatening to Anita that if she narrated the incident to any body, the police would arrest her, he left the girl near a petrol pump. The parents of the girl as also other `baraties' noticed a weeping Anita coming towards the function. On going close to them they noticed that her undergarments were soaked with blood. On being asked Anita told that a boy had taken her towards the bushes and caused her genitals to bleed. The parents of girl as also other persons immediately started the search of the rapist of Anita. The girl, on seeing the appellant present near the water pump, pointed at out him as her rapist. The persons apprehended the appellant. PW 2 Ghanshyam and several others went to the Police Station. Ghanshyam lodged FIR Ex. P 1 with P. S. Gandhinagar, Jaipur. After registering a case for offence u/s. 376 IPC PW 8 Prahlad Singh, the then Station House Officer (SHO), P. S. Gandhinagar, Jaipur immediately left for the place of occurrence. On reaching the place of marriage celebration he found the present appellant in the custody of the persons present there. Prahlad Singh arrested the appellant. It was noticed that the pent and other clothes of the appellant were containing some blood stains. His clothes were also seized. Prahlad Singh further observed that Kumari Anita was also putting on blood stained CHADDI and that her genitals were still bleeding. He seized blood stains CHADDI of the girl and sent her for medical examination. On conducting the medical examination of the genitals of Kumari Anita in the same night at 1. 15 a. m. PW 10 Dr. Nimmi Chhuttani noted that her genitals were bleeding, her hymen was torn and tears were present on her vagina. Vaginal swabs were obtained from the body of the girl and sealed in packet. During the same night at 2. 15 a. m. Mool Chand Appellant was also produced before PW 7 Dr. N. L. Disania for medical-examination. Dr. Disania noted blood stains present over and around the genitals of the appellant. The pent. and Neekar which the appellant was putting on also contained blood stains. Those were seized and sealed. On chemical examination the Assistant Director confirmed the presence of human semen on the Chaddi of Kumari Anita and on the pent and Neekar of the appellant. The Serologist confirmed that vaginal swab, vaginal smear, urethral swab and urethral smear, which all had been obtained by the Investigating Officer from the persons of Kumari Anita and the appellant in the course of investigation, contained human blood.
(3.) MR. Ashwani Chobisa Adv. who was appointed the Amicus-Curiae to assist the Court on behalf of the appellant led me through the entire evidence available on the record of the learned trial court and highlighted the fact that the identity of the present appellant, as rapist of Kumari Anita, was not established beyond doubt. The learned Amicus-curiae further submitted that there were material contradictions between the statements of Prahlad Singh S. H. O. , Investigating Officer in this case, on the one hand, and the other prosecution witnesses including PW 2 Ghanshyam-informant on the other. It was submitted that since the identity of the present appellant has not been established beyond doubt, the testimony of Kumari Anita who was a child witness should not be believed and relied upon by this Court. On the other hand, Mr. Rajesh Goswami, the learned PP supported the judgment and order under appeal and stressed that not only the evidence brought on the record of the case but also the facts and circumstances of the case attending upon the commission of the ghastly offence against the minor child conclusively proved, that the appellant was her rapist. The learned PP submitted that no doubt Kumari Anita was a minor child but it is to be taken note of by this Court that in the marriage celebration, the appellant had all the opportunity to commit ghastly crime against a girl aged about 4 years only. The learned PP further submitted that just after the occurrence the attention of the prosecution witnesses was attracted by the cries raised by Kumari Anita. The appellant was searched by the witnesses present there and on such search the appellant was caught hold by them as the girl had clearly pointed-out at him as being her rapist. The learned PP further submitted that not only on the Chaddi of the ravished girl blood stains were observed at that time but also that blood stains were observed on the pent of the appellant, which he was putting on at that time, the learned PP thus submitted that it was a case, which admits no element of doubt over the guilt of the appellant I have given thoughtful consideration to the arguments advanced before me and have also gone through the material attending on the record of the lower court. I need not emphasize that cases of sexual assaults against women and girls and particularly such girls who are quite innocent and immature, should be approached by the Courts with utmost sensitivity. A victim of sexual assault falls in the category of an injured witness. She is not an accomplice. Her testimony is, therefore, required to be appreciated in the same manner, as the testimony of any other injured witness is appreciated by the Court. In appreciating the testimony of victim of such sexual offence it has to be remembered that such offence against the member of fair sex not only causes physical harm or injury to her but also affects her psychology as also her very personality. Despite the fact that the victim of such offence is not at fault, the offence committed against her brings bad name to the victim herself and to her entire family. Therefore, in appreciating the case of sexual assault against women folk and girls the facts and circumstances, attending upon the commission of such offence, should be kept in mind by the Courts. The behavioural pattern of the persons involved therein have to be tested at the alter of normalcy of human conduct and behaviour. The conditions prevailing in the society and the way of life the persons concerned are given to have also to be kept in mind by the Courts while dealing with such cases. Once the courts come to the conclusion that a female child has been subjected to such ghastly crime by a grown-up male, then no leniency should be shown in awarding appropriate punishment to him. ;