(1) The accused in this case is a young man. He was convicted by the learned Assistant Sessions Judge at Nasik for an offence under section 376 of the Indian Penal Code for rape on a young girl of four years of age but was acquitted by the learned Additional Sessions Judge at Nasik in Appeal.
(2) The facts as they emerge from the evidence of Indubai (P.K. No.1), the mother of the girl, are few and we as follows: Her husband, Sukhdeo (P.W. No.7) is a motor driver in the State Transport Corporation and at the relevant time in January 1963, he was posted at Nasik. While she and her child lived at Pimpalgaon. Her husband used to come to the village every week. The accused lived with his brothers Vithoba and Balkrishna one house away from her house. Vithoba had two your daughters and therefore whenever Indubai had to go for any work, she used to leave her daughter Suman at the house of Vithoba.
(3) The incident occurred next day after the Sankrant, Her husband left on that day for Nasik at about 8 O'clock in the morning. She then went to the river for washing clothes, keeping Suman in the house of Vithoba. She returned within a short time and after putting the cloths to dry, she came out and saw her child answering call of nature and as soon as she saw her, Suman started weeping. She found her private parts injured and bleeding. She asked her what had happened and she learnt from her that the accused has caused the injury to her. She then contacted Vithoba who pleaded that she should forgive what had happened. She then went to her neighbour Shantabai (P.W. No.6) who advised her to contact her husband. She accordingly went to Nasik and contacted Sukhdeo (P.W. No.7) her husband. When she informed him about the incident he decided to lodge a complaint with the police. They therefore came to Pimpalgaon and lodged the present complaint on which immediate investigation was commenced.
(4) After the complaint was lodged, the girl's cloths were attached and she was also sent after a panchanama of her injuries having been made to the Medical Officer. He is Dr. Jotikumar (P. W. No.4) . He found six injuries on her . They are as follows : (1) Separation of things was painful. (2) Labia Majora and minoras were swollen. (3) Vaginal Canal was red and tender to touch. (4) Hymen ruptured and bleeding and tender on touching. (5) a tear of 1/4' x 1/8 ' x 1/8' on the right lateral wall of the vagina. (6) A tear of 1/6' x 1/6' x 1/8' on the anterior for nix of the vagina. The accused after his arrest was also forwarded to this Doctor and he reported that there were no injuries detected on any part of the body of the accused.
(5) Now, the evidence of the panch Madhukar Gujar (P.W. No.4) in connection with the examination of the accused and the seizure of his clothes is important. It is found that the payjama which the accused was wearing had stains of blood and semen. The witness has further stated that the panchanama correctly recorded what was seen by the panchas. Now, the panchanama is at Ex. 8. It states that there were two stains of blood on the right sleeve of the pant just below thing and similarly on three spots there were stains on the left sleeve below the thigh and near shout there were stains of semen. It also states that the private parts of the accused appeared to be flushed and swollen, though it is no doubt true that the Medical Officer when he examined the accused at 9,20 P.M. did not find this to be so. It also appears from another panchanama at Exh. 6 that the front room in the house of the accused was examined and there appeared to be some spots of blood. The report of the Chemical Analyser and the Serologist showed that the girl's clothes had blood, that the pyjama of the accused had blood and also semen.
(6) The difficult arose in the case, because the child was too young to give evidence and when she came in the box. She was found not able to understand the value of oath nor could she give any rational answers. In fact, in such cases the advisability of calling child witnesses had been questioned by L.C.J. Goddard in the case of William Evans Wall Work, 42 Cri App Rep 153. In this case there was no evidence of the victim.
(7) The other witness in connection with the offence are Indubai (P.W. No.1), Shantabai (P.W. No.6), and the father of the child Sukhdeo (P.W. No. 7), none of whom could have any direct knowledge in regard to the offence.
(8) Though evidence of statements made to Indubai by Suman cannot be given, in our view evidence of her and Indubai's conduct is relevant under the second part of section 8 of the Evidence Act. Explanation 1 to the section further shows that even a statement very closely connected to the conduct, in that it explains the conduct, would be admissible. that this is intended by the section is demonstrated by Illustration J. to it. In the case above referred to we have the following observations (at p. 162).
'There would have been no objection to the grandmother, saying; the little girl made a complaint to me; and she could have been asked: ' In consequence of that complaint what did you do? and the answer would have been ' I took her to the doctor and later to the police.' One realises that, although the terms of the child's statement must not be given, any jury could see at once that as a consequence of the complaint the grandmother took the terms of the complaint would mention her father.'
'I saw her answering call of nature outside in the open and on seeking me she began crying and on questioning she told me that accused had placed her on his lap and blood came out.'
The latter part is by way of explanation of her crying and clearly is admissible. the first circumstance therefore against the accused is that the child made the complaint naming the accused.
(9) The other circumstances are (1) that her private parts did show that she had been raped and (2) that the clothing of the accused strongly suggested that he could be the offender.
(10) Mr. Vaidya contended that these circumstances are not enough. It seems that when the Medical Officer was in the box, an attempt was made to suggest that the injuries to her were inflicted by reason of insertion of some other object. The Medical Officer said that the father of the girl requested him to give Anti-tetanus injection which he did. Even assuming that that is so, it may mean that the father may, because of the injury caused to her private parts. Suspect that tetanus may be caused because of some infection. That does not mean that the allegation of the prosecution was wrong. In fact we are not receiving in evidence the statements alleged to have been made by the child to her father and mother. Giving of the injection therefore means absolutely nothing. It is true that no semen was found on the clothing of the girl. But then discharge may not have taken place in the vagina or there may not have taken been sufficient penetration. We agree with the reasoning of the learned Judge below that mere absence of semen on the clothing at the girl or in the vaginal swab or the request of the father to the doctor to give anti-tetanus-injection to her does not mean that rape was not committed.
(11) Mr. Vaidya also contended and which contention found favour with the learned Additional Sessions Judge, that the semen on the phjama of the accused may be due to night dreams and that the blood may be due to injuries by reason of the agricultural vocation of the accused and therefore no possible inference of guilt could arise by reason of these circumstances. We are not prepared to hold that it is possible that by reason of agricultural operations an injury could be caused to the accused at a place on the things near which blood was found. In fact at no time was any such injury noticed on the body of the accused. He was examined by the panchas and also by the Medical Officer and no injury was pointed out to either of them. It is also not the case of the accused that he had night-dream either during the previous night or during the day. It would indeed be a remarkable coincidence that the night-dream should occur at time when this offence is committed. The blood stains near about the place where the semen was found without any corresponding bleeding injuries on any part of the body of the accused would show that the accused had connection with the offence committed on the small girl.
(12) In our view, all these circumstances put together must necessarily lead to the only conclusion that it was the accused who had committed the offence. We therefore set aside the order of acquittal made by the learned Additional Sessions Judge.
(13) Mr. Vaidya requested that in any event the sentence of three years imposed by the learned Assistant Sessions Judge would be severe and therefore we should impose a lesser sentence. We have considered the reasons given by the learned trial judge for imposing sentence of three years and we do not think that he has approached the question from a wrong point of view or that we would be justified in interfering with that sentence. The question of sentence is always in the discretion of the trial Court and this Court would not lightly interfere with that sentence. We therefore restore the order of conviction and sentence made by the learned Assistant Sessions Judge. The accused to surrender to his bail.
(14) Appeal allowed.