K.D. Sharma, J.
1. S.B. Criminal Appeal No. 593 of 1976 and S.B. Criminal Jari 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 under Section 376, I.P.C. and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/-, and an 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 Darjion-ki-Bagichi, Masuria at Jodhpur, on 12th March, 1976. Her daughter Kamla, aged about 12 years, also lived with her in the same house. Shyama 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 girl of Dhapuri to her house. Shyama 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 hard. 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 her 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 Kamla'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 Section 376, I.P.C. on the basis of the said report and deputed Bahadur Singh, Section 1. to make an investigation into the matter. Bahadur Singh arrested the appellant on 13th March, 1976. At the time of the arrest the appellant 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. x 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 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 epicondyle of humerus has partially fused;
2. Epiphysis of the head of radius has appeared but not fused;
3. Epiphysis of the olacranon 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 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 prenulum of the penis 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 State Forensic Science Laboratory, Jaipur, in a sealed condition for analysis and report. The Director of the said laboratory, upon analysts, 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 & Judicial Magistrate No. 1, Jodhpur, under. Section 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 to 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.
3. 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 examination 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 Section 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 competency of Mst. Kamla in the following words:
She understands the questions and the sanctity of oath.
It 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 is 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 reception 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.
4. 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 Shyama 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 v. The State 1975 Cr. L.J. 1009 (SC), and Bhagwan Singh v. The State of Haryana : 1976CriLJ203 .
5. 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 question 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-examination 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 to 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 Prosecutor 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.
6. 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 Section 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 add 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 than 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 v. 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 cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to cross-examine 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 v. Delhi Administration : 1976CriLJ295 , 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 credit worthy 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 toto.
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 is State : 1975CriLJ1009 (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.
7. In the light of the above principles or guide-lines laid down by the Supreme Court for appreciation of the evidence given by a witness, who was dealt with under Section 154 of the Evidence Act, the evidence of Kamla prosecutrix 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 with out 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 asked to tell 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, put 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.
8. 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 ugh fd;k Fkk vHkh fd;k gS A HkkbZ cfgu dk fj'rk jgk tks ckr eSus ij crkbZ gS lc lp&lp; crkbZ gS A eSas vc mldks HkkbZ ugh le>rh D;ksfd mlus [kksVk dke fd;k gS A
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 pm. Kamla came to her house weeping and having stains of blood on her Kachha, Ghaghra & towel tied to her waist Pepi further stated that Kamla disclosed to her that Shyama appellant caught hold of her, took her inside her room, pressed her mouth with his hand, turned her Ghaghra upwards, untied his pantaloon and committed sexual inter course 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 Shayma appellant and his wife came to her house and begged her to be excused as they had committed wrong. They also requested Pepi to hush-up the matter upon taking any sum what so ever.
9. The evidence of Mst. Pepi PW. 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 destroy the value of her evidence or to impeach her credit. It was 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 Section 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 P.W. 2 out of some ulterior motive and later adhered to it or affirmed the same falsehood in the trial court.
10. 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 prenulum 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.
11. The medical examination of the girl also revealed laceration of the labia minora at about 3 o'clock position 1 cm x 02 c.m. and laceration of her vagina 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 raped. 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.
12. Smt. Kamla was medically examined as to her age also. X-ray examination of her elbow and wrist clearly revealed that epiphysis of the medical epicondyle of humerus had partially rushed, epiphysis of the head of radius had appeared but not fused, epiphysis of the olacranon 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.
13. Upon careful review of the entire evidence on the record, I am satisfied that the prosecution has proved the guilt of the appellant beyond any shadow of reasonable doubt and the appellant could not substantiate his plea of alibi. The trial court has assigned good reasons, with which I fully agree, for rejection of the plea of alibi set-up by the appellant in this case and I think it unnecessary to reproduce them here. Suffice it to say that the appellant could not furnish any reliable oral or documentary evidence to show that he was discharging his duties attached to his post at the time when the rape was alleged to have been committed by him on Mst. Kamla.
14. The last point that remains to be decided is whether the sentence awarded to the appellant by the trial Judge is severe in the circumstances of this case. The contention of the learned Counsel for the appellant in this connection it that the age of the appellant was about 20 years at the time of commission of the crime. According to the learned Counsel for the appellant the appellant is a village boy & was not mentally depraved at the time of the offence & no useful purpose would be served by detaining him in jail for a long time. The above contention has no force. The age of the appellant was recorded 21 years in his statement under Section 313, Cr. P.C. by the trial court. The prosecution has proved that he committed rape on a girl of about 14 or 15 years of age, who was not in a position to defend herself. Crimes of rape committed on girls of tender age must be put down with a stern hand to prevent recurrence of such cases. There are no extenuating circumstances in favour of the appellant justifying reduction of the sentence awarded to him by the trial court.
15. The result is that the appeals filed by Shyama appellant are dismissed. The appellant is on bail. He shall surrender to his bail bonds and shall be sent to jail for serving out the sentence imposed upon him by the trial court. The Chief Judicial Magistrate, Jodhpur, is directed to get Shyama appellant arrested and sent to jail to serve out the sentence passed against him. However, the period of detention, if any, undergone by the appellant during investigation, inquiry or trial of this case and before the date of such conviction shall be set off against the term of imprisonment imposed on him and his liability to undergo imprisonment, on such conviction, shall be restricted to the remainder if any of the term of imprisonment imposed on him.